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.« • 



m a t I ■■ ■ 11 



I 



DECISIONS 



OF THE 



/ COURT OF SESSION, 

I 



FROM 



l^th November 1828 to Uth July 1829. 



COLLECTED BY 



F. SOMERVILUS, J. TAWSE, J. CRAIGIE, and 
AD. URQUHART, EsatHRES, Advocates. 



MY A^POII^TMENT OF THB FACULTY OF ADVOCATES. 



VOLUME IV. 8V0. 



EDINBURGH: 

PRINTED FOR JOHN ANDER^ON^ 
ROYAL EXCHANGE. 
M^ Jilejr. Smiikj PrhUer io Oie Faeuii^ qf AdvcaU§i. 

1829. 



295354 



JUDGES 

OF THE 

COURT OF SESSION 

DUBING THE PERIOD OP THESE Ri;PORTS, 

An> iCOKTAXKSD IV THIS TOLCME, BEIKG VOL. ^V. IK 8vo. 



FIRST DIVISION. 

Big^t Honourable Chables Hope^ Lord President 

HoBKitT Craigie, Lord Craigie. 

Dayib Bobebtson Williamson Ewabt, Lor4 

Adam Gillies^ Lord C^e^; x 

Jjord^ Ordinary. 

Alexandeb Maconochie, Lord Meadowbank. 
John Clebk, Lord Eldin. 
Geobge Cbansxoun^ Lor4 Corehouse. 
Alexandeb Ibyino^ Lord Newton, who succeeded 

LordEHdin, who resigned during ^Vinter-Sessipn 

1827-28. 



SECOND DIVISION. 

Ril^t Honoiirable David Boyle, Lord Justice-Qeirk. 
8iB William Milleb, Bart. Lord Glenlee. 
David Montp£NNT» liord Pitmill7. 



David Cathcart, Lord Allowiay. 

James Wolfe Murray, Lord Cringletie, who suc- 
ceeded Lord Alloway, who died during Spring Va- 
cation 1829. 

Ijyrds Ordinary. 

James Wolfe Murray, Lord Cringletie. 

Jo«HUA Henry Mackenzie, Lord Ma^enzie. 

John Hay Forbes, Lord Medwyn. ^ 

John Fullerton, Lord Fullerton, who succeeded 
Lord Cringletie, who was reaio^ed to the Inner- 
House in room of Lord Alloway, deceased. 

Lord Ordinary on the Bitts^ <|c. 

Alexander Irving, Lord Newton, who was suc- 
ceeded by John Fullerton, Lord Fullerton, who was' 
^succeeded by Sir James Moncreiff, Lord Moncreiff, 
who was appointed ujion the death of Lord Alloway. 



Sir William Rae, Baronet, Lord Advocate. 

Sir James Moncreiff, Bart. Dean of Faculty, who 

was succeeded by F|*ancis Jeffrey, Esq. in Summer 

Session T829. 
John Hofe, Esquire, Solicitor-General. 



PURSUERS' NAMES. 



Aknader, 


No. Page. 
18 121 


Johnston, James 

K 

Keltie, 

L 

Lockhart, Mrs H. 

M 

MH^iie^ Mrs and others 
M<:ul»orh, 
McDonald, Donald 
M*Ghie and Yoiuuf, 
M*Ken^ie, - - 
M'Laren, Margaret . 
Maxwell, Sit J. and othei 
Mortoq, 


No.] 
10 


Page 
46 


B 

BolKwr, 

£fiiieov*8 Trustee 
BnchiBui ind P«tenoD, 
Bun and mandataxT:, 


4 

19 

7 


20 
128 

31 
228 


38 
1 


243 

1 


C 

Cbeyne and Mackeraj, 

Cowuy Alexander. 

Gians»3iazj 

CoUibartaoi^ 


8 
12 
S5 
41 
20 
24 
2a 


35 
68 
234 
285 
137 
181 
173 


14 

33 
25 
23 
88 
8 
-B 13 
28 


89 
228 
169 
159 
268 
27 
62 
204 


B 
I>a]]aa, 
IknaldaoD and husband. 


18 
21 


82 
148 


P 

Pollock and Dickson, 

S 
Sands, John Sim 
Scott, 

Scott and GiSbrd, 
Sivright, 
Strahan, 


32 


223 


F 
Faixfix, Ladj and others, 
Fisher and Hepbuni, 
Fiaser, J. B- 

G 


30 
17 
39 


215 

89 

259 


22 
31 

9 
37 

2 


160 

220 

41 

248 

6 


GiAmBifa, JX S. 
Giahaniy Francis 

H 

T 


11 
3 


63 
14 


T 
Thorn, 
Thomson, Mrs H. 


27 
1 


181 
1 


6 


23 


W 

Wight, 


29 


211 


•9 

JobaoD and Hay, 


15 


80 


Y 

Young, J. & M. 


40 


282 



DEFENDERS' NAMES. 



Allan and Companj, 

B 

Black, 
Browiiy " 



NaPage. 


19 


128 


27 


181 


31 


220 


8 


27 



Clark, 

Colquhouns, 
Cuthil and others, 

D 

Dickson, Langdale, &c. 
Donaldson, 



No. Page. 

38 256 

36 234 

6 23 



20 
8 



137 
36 



DEFENDKRS* NAMES. 



NaPage. 

Dunfermline, Magistrates of 7 31 

P 

Finla^, Mrs and others 21 148 

Fleming, John . 24 161 
Forfiu*, Procurators before 

Sheriff Court of - 22 150 

Forman, - - 29 211 



Graham^ W. & G. Sinclair, 26 173 

Greenshields, . . 90 210 

H 

Henderson, - • 23 169 

Hunter, General David 3 14 

Hunter and Company, 28 204 



Lambert, . . 18 80 

LAUrie, . . 41 265 

Lead, John • - 13 62 

Lothian, David - 14 69 



M'Andrew, 

M'Caugfaie and others 

Mcintosh, John 

McNeil, Malcolm 

Merry, 

Miller and Kerr, 



Purvis, 



S 



Seymour and othevs, 

Slutrpe, George 

Stoddart, 

Syme and Stewart, 



NaPi^ 
32 

4 20 

25 169 

11 53 

16 82 

41 



34 229 



18 121 

1 1 

2 5 

17 89 



9S 



Walker, - - 18 

West of Scotland Insunnoe 

Company, • « 10 45 
Wilson, . . . 36 243 
Wilson and Borthwick, 37 246 



PRINCIPAL TITLES. 



NobPage. 
Act of Sederunt, llth Julj 

1818, ... 5 23 

» 160 

A4jiidkatiaii, - 31 220 



Aitttntion, 
Aiirocation, 



.(JurUdkUomB 



B 



Bill of Ezdiaiige^ 

/^•div conaunptioii, 
C 

D 



Cmm 






PotCJ^B* 



Mi 

Hi 



H 
and Wife, 

land J 









3f 

O 

F 



38 256 
22 160 

14 69 

34 220 



12 66 

19 126 

20 137 
26 173 
39 269 
41 266 
26 169 
31 220 

13 62 



S3 228 



36 243 
26 173 



20 137 



26 169 

1 1 

36 234 



9 41 
10 46 
30 216 

8 36 
16 82 
18 121 
34 229 



27 181 

U 63 

7 31 



Prescription, 
Process, 



Proof; 



Repuation, 



Sale, 

Sasine, 

Sequestration, 



Service, 

Servitude, 

Ship, 

Statute, 1696, c. 6, 



10 Geo. II. c 28, 

SO Geow II. c 43, 

sect. 34, - 
64 Geo. III. c. 187, 



No. Page^ 

36 234 

2 6 

4 80 

6 23 

16 80 

21 148 

22 160 

23 169 
26 17S 
30 216 
36 243 

9 41 

11 63 

12 66 

24 161 
26 173 
28 204 
32 223 



89 211 
28 204 
12 66 
39 269 

36 234 

37 246 
6 27 

19 126 

20 137 
18 121 



4 Gea IV. c 49, 

6 Geo. IV. c 120, 

sect. 49, 

. 7 Geo. IV. c 67, 



8 36 
12 66 
39 269 
41 266 
16 82 



Sununary dilig^dice. 



160 
66 



Suspension, 

T 

Tailzie, 

Title to pursue, 

Tutor and Curator, 

W 

Witness, 
Writ, 



22 

12 

J7 

26 169 

23 169 



36 234 

3 14 
17 89 
40 262 



24 161 
28 204 



NOTE. 



IQth November 1828. — It was intimated frem the 

Sench this day\ that, in Juture, upon the days of the 

Teind Courty after the business of that Court was 

finished^ the Court qf Session would sit in their re^ 

speetive JDivisionsJbr the dispatch of Summary Cases. 



INDEX. 



PURSUER'S NAMES. 



A 

Aim sad othen, « 88 #71 

, irUliam, . 104 884 
»lfn£.andhiis- 

60 446 

, Child^ ftc . 101 841 



B 



oCScoClmdy 



7e 610 

09 837 

79 638 

48 348 

86 687 
64 408 
75 618 

70 480 

116 .823 

07 826 

84 484 

87 673 
102 801 

66 416 



1Mb, ... 83 467 

I>idaaii, J. and W. . 57 437 

Bktea, DftTid, 103 853 

DiBgwmll, Magistntet of 68 484 

DttidM'a Trustees, 46 292 



Eafie^Joha, - - 81 448 
Etfinbiii^ Magistrates of 47 333 



J John 
Beveridge. 
BUki^ . 
B^yd, Hn Waddel, - 
B«]iBi» Bobert, 

C 
GsthcaxtySirJohnA. - 
Ganna, Isabella and others 
College of St Aodrewiy 
CondM^ Geoige - 
Corik, - - . 
Cowan, ... 
f John 



F 



AfquharsoD* 
FagaMOf Mrs 
Festal 



Gemmel's Tru^tees» 



01 800 

118 848 

84 683 



02 808 



NaPage. 
Gerrit, Schuurmant, and 

Sobs, - . Ill 006 

Okasfoid, . . . 78 628 



Hamilton^ 
Harpers^ Mrs 
Holmes and husband, 
Houldsworth, 
Hunteri Charles 



Jameson, John 
Jefl&ej, 
Inclisand Co. 
Jonnston, John - 
Johnstone, Henrj 
Inrine and Shepherd, 



Kennedy, B. and curatoTB, 73 406 
Kennedy, - - 81 647 
Kerr, John B. snd others, 80 488 
80 680 



08 


823 


68 


418 


108 


782 


118 


820 


107 


794 


«7 


483 


100 


801 


04 


809 


48 


267 


44 


287 


63 


402 



Kerr and Johnston, - 82 668 



Learmonth, . - 100 830 

Lerick and others, . 68 432 

Little and husband, • 43 281 

Littl^ohn, Margaret, 113 812 

M 

Macker87,L. - - 83 660 

BI'Dougal, - - 00 608 

M<Ken2ie, Mutdo - 60 870 

McLaren, M. . - 03 820 

M'lntjre, - . 112 800 

Matheson, - - 88 676 

Maule, Xraiiam, - 106 889 

Munt^, - . 80 880 

Munro and others, • 06 818 



V 



Kubet*8 trustees, 



Pfitersoo, Rev Dr • 
Fringle 



INDEX. 
Ko. Page. 
51 376 



114 814 
60 446 



Queensbenj, Marquis of^ 77 ^^ 



Robertson, Mrs Jean 

S 
Sands, John Sym, 
Shiels and husband, 
Sinclair, I>uncan, 



116 826 



49 3^2 

106 782 

73 503 



No. Pm»» 
46 300 



Smith and others, 

Stewart and curators^ - 62 39Q 
Stewart, - - - Q2 463 
Stonehaven Harbour, Com- 
missioners of - - 74 609 
SutCT/ ... 117 «2« 
Syme^MrsJ. . . 7| 494 



Taylor, - - - 108 79« 
Trinity House of Leith and 
others - - r 06 47<i 



-^att, WillUm 
Watson, Agnes 



W 



66 47i 

10? «*7 



DEFENDEJi^S NAMES. 



No. Page. 

A 

Aitchison,JQhn - t 104 684 

Alisons, ... 109 801 

Ancrum, Kirk S^on pf ^02 647 

B 

Baikle, James, and others (»2 890 

Boffle,WiUiam - - 75 518 

BoW Trustees, - - 93 607 

Buchanan, R. C t W 437 

Buik, ... 98 629 

Burnet, Mrs r M 408 



Caddel and Sons, - 56 432 

Campbell, r ^ ^8 
Cairns, Williajn, and man- 

dat^, - - W 823 

Cathcart,John - 70 489 

Charles, Dr and others, 7^ 494 

Cochrane and trustee, 42 267 

College of Edinburgh, 47 333 

Corson's trustees, - ftl 547 

Cunningham and others, 103 653 

Cuthbertson and Brown, 55 416 

Cuthil's trustees,, -. 87 573 



Denny, , r ^ r ^^ fi71 

Dumbarton Glass Work Co. 63 457 

Dunda% Wedderbym, 45 292 

Dykes and others, " r 93 607 



No. Paga, 
E 
Edinbur^ Magistrates of 66 47C( 



Forbes and others^ 

Q 

Gibson, Rev. T. 
Gilchrist, Dugald, 
Glen, Thomas, 
Gu^rie, A. M. 



84 669 



77 622 

50 370 

66 472 

83^ 65Si 



Harvie, Joseph ai^^l James 112 809 

Hamiit()n, James 113 81!d 

Howie, James' • 61 448 

Hunter, Rev. Dr . 97 626 



Keith, Sir Alex. . 74 609 

Kennedy, A. and JT. 72 495 

Kinnaird, Hon. D. J. W. 107 79^ 



Laing, John 

LaniD,^ame«, 

Lyon, 



M 



Ma)owal, 
McLaren, D. 
M^GacneU; Alex. 



58 440 

U6 826 

95 618 



85 567 

53 402 

119 846 



INDEX. 



Itt 



If ^Sesie, Mrs H. 


NaPaoe. 
68 484 


Pott and McMillan, 


No. Page. 
101 641 




78 
80 


A9A 








MSmjt, 


539 


B 






Jf-E«, 


60 


446 


Reid, 


106 


782 


KikolBi, 


108 


798 


ftobinson and othen, 


91 


600 


Hnl^ Hoo. TTilliaiii, 


105 


689 








Ve&D and ochers. 


49 


362 


S 






MUlii^ A. and M. 


86 


667 


Scotland, Bank oi, 


46 


900 


JffiHav 


93 


603 


Scott and Small, 


44 


297 


lfill^«. 


99 


687 


Scott, 


82 


664 


HoBtrase, MairisUmlMor 114 
JforiaoB's trustees, 61 


814 
876 


Steele, laobel 
Stewart, Alex. 


79 
64 


636 
464 


HortOB, 


100 


639 


T 
Twcedle'B trustee, 






N 






1)1 


806 


KkoiyGeoige 


69 


486 


V 

Vaughan,PiyR.W. 






O 






89 


680 


OgihT'strwCeea^ 


76 


619 


W 






P 






Watfc 


110 


902 


PMd,Willi«n, 


04 


609 


Wigh^ Archibald 


67' 


•483 




96 


.623 


Wightman and others, 
Wfion, 


43 


2K0 


Pollock, Mn and husbAiid, 62 


463 


48 


348 


F«ter, 


118 


829 


Wilson and M'l^Uan, 


79 


609 



PRINCIPAI, TITLES. 



No. Page. 
A 

Actor8ed.6thFet».ldC6, 67 483 

. , r-.^r-^ 100 639 

12tfa Nov. 1826, 80 639 

, 11th Jul/ 1828, 49 362 

80 639 
49 362 
92 603 
42 267 
46 292 
63 402 

IQI 6a 

81 647 
94 609 



Adrocatiaiiy 



Appraliate and reprobate, 
Anataient, 



fiaakropC 



KB of Exchange^ 

C 
Cautioner, 



48 348 

66 432 

82 658 

83 569 
87 673 
94 609 

111 805 

99 637 



46 300 

61 41G 

86 571 

05 618 

101 641 



Cessio Bononim, 
CiUtion, 
College, 
Curator Bonis, 



Execution, 

Executor, 

Expenses, 



Factor, 
foreign, 



Olebe, 



F 



H 

Heir apparent. 
Heritable and ^toveable, 
Homologation^ 



No. Page. 
117 8^9 


113 


812 


47 


339 


69 


446 


112 


809 


116 


826 


96 


623 


107 


794 


106 


782 


96 


618 


68 


484 


100 


689 


111 


806 


64 


408 


46 


292 


63 


457 


89 


680 


77 


622 


97 


626 


119 


8i6 


U 


267 


112 


809 



ir 



INDEX. 



Inhibition, 

Implied obligation, 
Juiiadiiction, 



Law agent, 
Legitim, 



M 

Mansoi 

Master and servant, 

MediUtio ftig«e» 

Minority, 

• ■ « • ■ II • 

Nobile offidum. 



No. Page. 

09 4«6 

106 782 

64 464 

77 622 

88 675 

116 fr26 



44 287 

42 267 



97 625 

65 457 

110 802 

105 689 

US 809 

54 408 



Oath In supplement, 79 536 

F 

Pactumillicitum, • 56 439 

Paasive title, . 119 845 

Personal and transmissible^ 58 402 



Personal obligation. 

Poor, 

Prescription, 



Presumption, 
Presumed will, 
Process^ 



103 653 

192 647 

81 376 

74 509 

88 526 

98 629 

105 689 

107 794 
li5 823 

44 987 

49 362 

'82 890 

67 483 

71 494 

80 539 

86 571 

88 575 

90 598 

91 «D0 

92 608 
98 607 

iOO 639 

f08 658 

108 798 
119 645 

79 536 
57 437 
62 453 
84 663 
Provision to heirs and chil- 
dren, . 115 823 
Public police 00 446 

R 

Ranking and sale, 76 519 

-Z . 118 815 

Kedufetion, . 109 301 



Proo^ 
Property, 



Registration, 
ResJudicaU . 
Right in security 



Runrig^ 

. S 

Sale, 

Salmon flriiinga, 
Semiplena probation 
Sequestration, 



Service of heirs, 
Servitude, 
Statute 1579, c^ 83, 



. 1681, c. 5, 
. 1686, c U, 
. 1693,-c 19, 
. 1695, c 23, 
.C.24, 



No. Page. 
109 801 


103 


653 


48 


346 


96 


628 


118 


829 


75 


618 


48 


281 


65 


472 


60 


370 


79 


636 


48 


3^8 


68 


440 


70 


489 


76 


619 


82 


568 


83 


659 


Hi 


607 


104 


684 


74 


609 


61 


376 


96 


629 


86 


667 


60 


446 


106 


782 


75 


.618 


72 


496 



. 44 Geo. III. c 137, 48 348 
.60Geo.IlI.Cb 112,92 603 



64 Geo. III. c 137, 87 673 

6 Geo. IV. c 120, 49 362 

— , : 71 4»i 

_, 80 55* 

- 100 689 

Stipend, 55 415 

_1_ . 114 814 



Tack, 



Tailzie, 



Teinds 
Testament, 
Title to pursue 




Warrandice, 



Winter-herding, 
M'rit, 



,81 *47 

94 609 

106 689 

118 829 

72 495 

103 653 

105 689 

65 415 

89 580 

60 W 

ise 476 

103 653 

^ 408 

t9 680 

52 890 



65 415 

73 503 

60 448 

85 567 

103 653 

106 782 



i> El c; isi'b^;iirs 



or THE 



COURX OF SESSION; 



FIRSl DiriSION. 

Ko. I. 13 November 1828. 

Mu HANNAH LOOKART oa THOMPSON 

against 

GEORGE SHARPE. 

Husband anb Wife« — A wjfe may. Jar mi aUment 
awarded to her hy a decree of separation a mensa 
et thoro, compete with the onerous creditors qf her 
ksubamd^ according to their reactive diligences^ it 
mot being proved that he was insolvent at the date 
^the decree. 

On the SOth November 1820, Mrs Hannah Thomp* 
ami cur Lockart, wife of Ebenezer Thompson^ barrack<« 
mastar in Leith, with her two ebildren» left his house 
on account of alleged maltreatment On the 8th of 
March foUowing* she uaed arrestment upon the de« 
pendence of a summons of separation and aliment rais« 
ti BgaiwA him before the Commissaries ; and^ in the 

A 



IFif4. 



« DECISIONS OF THE No. 1. 

iSN^^ajj^gjjjjjj^g of June foUcyhiff, the daimant, George 
Thonqpswvu Sharpe, raised an actib'Q.fbr payment of furnishings 
^'**!!!L- ™^® to the family: jpeevious to their actual separation 
^^fftMtf mr in November,, tfihrested on the dependence on the 8th 
of that monthjf and obtained decree in absence on the 
24th of Octoller 1821. 

Ttrereifter, (Ist Feb. 1822) decree of separation a 
men:sdr et tiiato was pronounced in favour of Mrs 
- Tliompson ; and, on the 22d March and 26th April 
\ following, certain sums of aliment were awarded to 
herself and children, the last interlocutor awarding 
L.65 yearly to herself, and L*2(^ to each of her diil- 
dren. At this period Thompson had an annual income 
from government of L.250, as barrack-master, and 
his debts amounted to about L.170, for payment of 
which he had been incarcerated, and he had afterwards 
rais^ a process of cemo. 

In these circumstances, a competition arose on these 
arrestments, in a multiplepoinding raised before the 
Sheriff of Edinburgh, in the name of John Hutchi- 
son, the arrestee. An objection to the competency 
of Mr? Thompson's arrestment having been overruled, 
fmle Report, 9 July 1828, No. 186) the question 
now came to be, whether the claim, on which it was 
rested, for the sums of aliment awarded to her by the 
Commissaries, was preferable to Sharpe's claim fbr 
the furnishings made to the family before the actual 
separation of the parties, in respect of the priority of 
diligence. she had used. 

Mrs Thompson's main plea was, that although, in 
the case of a voluntary separation between a husband 
and wife, "the wife's right to an almient could not in 
general compete with the onerous creditors of herhufl- 
band, yet where there had been a judicial separatfon 
in the proper courts^ and where a aum had h^^ 



AV I. COUAT OF SSSmON. 



to the wifis in the wajr' at dlimdii-.4lid kii0>iil^«v' <'<M^ 
in# jMt iMfntf insolvent at tbd time-^H^ became an jTr^^^ 
flBenxtt creditor, and entitled fo c6nipet6 with hisShvpe.^ 
^dker ere^totB ac<^c^dllig to the ^g^oe used hy^J^^^^ 
Mfe; and, ia tike circumstances of ihe present case,''^^ 
tfe hnabiM could not be said to b^ fAifolyent^ al« 
ftel^ hia tfShiito vp^ere much emfaKiGf I'assed at the datef 
tf die decree. Even in the case of a vdlttntary sepa- 
mioD, where a eertain sum or right of p»ot>6rtsr watf 
tade oter to tlie iTirife absolutely, afid without collu« 
don, die migbt ireiaAn it in a question With his other 
creditiMS, as had 1>een found in the ease of McGregor 
tod Trustees 9. M'Gregor, a2d Jan. 1820. Mrt 
Thompson also ireferred to Bell, vol. i. p. 548-9» 
C5S4> ; ErsMn^^ B. i. tit. 6» ^ 81 ; Greenhill t?. Ford, 
TdiFeb.lS92,j8^ andH.; Robertson r. Robertson, llth* 
Jme 1718» F^^wnt. ; Cumming o. Duncan, ^Ist Jan. 
Yflly Dah". (H/fcr. 9191); Jameson o. Houston, 14th 
Hov. ITTO, (JStEor. 8898) ; Buchanan t. Ferrier, 14th 
Feb. 1822» S. and D. ; Seton afiid others v. Countesc^ 
rf Caithness, X6th June 1761, (Mar. 772); M*Do- 
Bdd and Klder v. M'Leod, 15th Jan. 1811 ; Barr's 
CRdifore f>. His Relict, Fol. Diet. (Mar. 8147) ; 
■sues v. Ains'Arorth, Karnes ; Baines #. Graham* 
IMh FA. 1796, (M<kr. 2904) ; Walker tf. Polwar^ 
ISlil June 1685, Durie, (Mot. 95S) v R6bertson v. 
BiDdyaide, 11th Jan. 1788, Poi. l>t^. (Mi^. 957); 
Lri^ Aud^iAbreck t>. CampbelFs Cf^Siite^s; ^lOth July 
W44^ JSfll. (M^. 988.) ^ 

R^^a«'a^lMfSJ)^£^eU^Tbaei^^ li>)ii|r'hus^ 

taiMfin a alktef tf separatitto freto Ki» wife cotdd ncrf 
te y hB fll y atlached by her in sirSsfadicrfif d# any daini 
^fmimisilii wlidreihe whole 9mM w^tfte xriMficient 
tf^pj^t]i«^4<^B^'dae^by him; l^^T^afe^' tfi9 pirate 
ftmd bad been set apart for her alimeSW^ B^ vcd^ 

A jl 



♦. DECISIONS OF THE No. 1- 

**>iii2^"- p- *•''' ^ «^*- ^^ ^^^- ^' p- **^* **^ ^^-5 ^f^**'^ 

ThompBoii 17. «?. Robb's Creditors, 8th March 1794 (^Jif or. 5900); 

siiarpe^ Lec I?. Watsou, let December 1795 (Mor. 5889)* A 

Bwbandand "wiSe^B daim ofjaliment could only lie against ^e free 

'^'' funds of her husband, deductia dehiUs. It was in vain 

to say that this claim of the wife could compete with 

the onerous creditors <^ the husband, provided' he was 

not insolvent at the time of the decree ; for, in this 

way, such creditors would be cut out of their ju&tr 

debts by claims which had no existence when these 

debti Were cdntracted. It was a clear principle of the 

law of Scotland, that the onerous debts <^ the husband 

were preferably to posterior claims of aliment. 

. The. Lord Ordinary * preferred the claimant, George 
^ Shitrpe, primo loco, on the fund in medio, for pa]r«» 
\ ment of his debt, and interest thbreon, as stated ia 
* the claim ; and preferred Mrs Thompson, secundo 
^ loco, for payment of the remainder of the fund m 
\ medio, and decerned/ &c. 

. Mrs Thompson reclaimed ; and the Court were uniL* 
nimously of opinion that, this being the case of a judi- 
C!9al separation, the decision of the present question 
depended .upon the fact, wl^ether the husband was 
truly insolvent at the date of the decree of separation. 
On this point, their Lordships held that, although the 
affairs of Thompson wer^ considerably embarrassed, 
and he had no tangible funds equal to the payment of 
his debts, he might, by effecting an insurance upon his 
Itfe, or by other legal m$ans, have raised a sum equal 
to their discharge, and, at the same time, be justly 
yubjected to the aliment awarded to his wife and chil^ 
#ren ; and, as the arrestment of Mrs Thompson waa 
prior in dajte to that used by the respondent, she fell 
to be preferred. 



No. h COURT OF SESSION. 5* 

Their Lordship^, therefore, altered the interlocutor i8^<>v- ^«»«- 
cfthe Lord Ordinary ; advocated the cause ; sustained ^b^J^J^ 
Ae daim for the said Mrs Hannah Thompson ; and^- Sharpe. 
fnSarredher, primo loco, on thefundm medio, f or the jiu^ii^and ' 
tarn, principal^ interest, and expenses due to her/ ^^^ 

lard JleadaseiKmUc^ Oidinaiy. For Mrs Thompson, Skene^ 
Carlisle* — Fergummy W. S. Agent. For George 

Sfaarpe, Soi^Gen. (Hope) Wibon, D. Braske, Asent.' 
I^. Clerk. ^ 

C. 



SECOND DIVISION. 

No. II. 19 Nwemher l%9». 

STRACHAN 

against 
STODDART. 

Repakatiox. — ^Process. — In an action of damages 
agmnst a magistrate for granting an iUegtd war^ 
rant, nader which a party has been apprehended, 
it is not necessary for the pursuer to aver malice^ 
or want ofprchable cause. 

Tre pursuer raised an action of reparation and da* 
mages against the defender, who was a justice of the 
peace for the shire of Bute, for granting an illegal 
warrant for apprehending and bringing the pursuer 
before him for examination, on a petition which aU 
hged that he was a debtor in meditationefugte. 
The pursuer,, as alleged in the summons and con- 



prnmom pf the 



No. a 



^*^^ d^flee^dence, ha^ hem P??e«t^ on this warrant, and 
stw^^ oarried sqme ipUe« frcwn the pli|ce where he was ap^ 



Stod4|^ 



prehepded, tp the defjpinder'f house, for the purpose of 
exaniinatioQ, wh^r^, tipw fttatiqg that he wi^ improsr 
perly ^amed i« th^ petitioji aqd warra^t of arrestmmlt. 
he was dismissed without further procedure. 

The summons and defences were remitted to the 
Jiu*y Court, for the purpo^ of preparing the case for 
|;rial ; but a difficulty occurred in framing the iasueSt 

* whether the pursuer, in the question between him 
f and J>r Stoddart, the justice of peace, was bound to 

* aver, in his condescendence, malice and want of pro- 
f bable cause.' The case was accordingly remitted 
back to the Court of Session, for the determination of 
this point* 

The Lord QrdQi%Qr tQok t^ cause to report 04 
pases, in which — 

The pursuer pleaded — ^According to the avermeiits 
in the summons, an injury has l^n inflicted on the 
pursuer, and the liberty of his person invaded by 
ineans qf an illegal wai;rant graiited by the defender* 
In such a case, it is not necessary for the pursuer lo 
fdlege malice, b^cauae, although a judge decidiag |i 
pivil action is not liable in damages for a wrong de- 
pision, proceeding on a mere ^rror pf judgment, yet 
a magistrate who graqts a warrant of apprehension is 
responsible for its legality ; apd if an illegal or iofor- 
inal warrant of incarceration or apprehension be en- 
lorc^d, the granter i«9 liable ip damages for oppvemv^ 
Mr. wrongous iippKison^ent, without apy qu^sjMon^ 
to whflth^ hearted ipalif^ops^ or. in good faith, ip 
graating it. In ^h^ cfise, of A^deirsoa r. ^ithf 2fitb 
Koy. 1814> it was admitted, by all th^ Judges that, if 
fhe illei^ warrant for iipprisoameiit,. granted JbQr Mr 
|t9i#ni& bAd.b^2) cflUri^ intoe^ect^ < he wou^^haye 



No. 1. COURT OF SBSSION. f 

'keen answeraUe^' notwithstanding the bona JUes > • ^o^- w> t> 
with ^BHiieh he acted. See also, Bell v. MaxwdU SSd stn^!^ 
Not, 1748 (Mor. 18,951) PhiUips f7. Magistrates ofstoddart. 
Aastanther, SSd Jnne 1748 (Mor. 18,953); Bam- 
mj r. Coidter, 19th Dec. 1799 (Mar. voce Wrongtm^^'' 
ImpriBomment, ^pp- No. 1.) ; Laing v. Watson and 
Molliaon, 20th Dec 1789 (Mar. 8555) ; and Mil- 
hoUan v. Dalrymple, &e. Sltt Dec. 1886. In none of 
tixse cases was there any allegation that the magis- 
tnles had acted malidonsly ; but they were found lia- 
hle in damages merely because their proceedings were 
Mli«aL 

The defender muwerecL^No action of damages 
i^nst a justice of peace, for a proceeding dilrtieted by 
l&n in tlie course of his ordinary duty as a judge, 
can be supported, unless the pursuer aver that there 
was both a want of probable cause, and maliceon the 
part of the justice^ This privilege has received the 
sanctioB of the court of last resort, in the case df 
Arbodde d. Taylors, &c. (Dow^ vol. iii. p. 160); and 
Ibe other decisions are not opposed to it j for those of 
Lah^ 9. Watson, 6cc. and MilhoUan v. Dalrymple, 
were cases of real oi^nressjon and actual damage ; and 
in that of Walker r. Smith, the magistrate, Mr Jait- 
'dine, was assoilzied^ 

The eircumstanees of tiie present case are also fiEt- 
voBfable far the defender, as the warrant which hfe 
granted was only to bring the pursuer before him f<^ 
enatdfiition, and was not followed up by atly further 
;. atidv tlieiefore, "witfaottt a specilic ave^ 
of maiiee, all the othar allegations made in the 
MDBions and ooodesoendence are irrelevant. 



2ie Omrt wm wnanimously of ojnnion that it was 



• 



IJEdSIGOSvOF THE 



Vo.i. 



j8H0v.iefl& ji^ necessary for the pursuer to aver malice or watft 
stM^imT ^f probable cause in his condescendence. 
stoddart. Lard PitmiUff. — ^This case has been remitted from 

jUparoHM. ^« J^y CouTt, in order that we may determine a 
Pr9P$n. short and single point of law, which has occurred in 
a preliminary stage of the. case, in preparing it for 
trial; and we hare nothing to do with the other 
questions of law, which appear on the face of the sum- 
mons and defences, and may afterwards emerge in the 
course of the action. 

The pursuer avers, and undertakes to prove, that 
he was apprehended on an illegal and irregular war- 
rant; and the only question remitted for our con* 
sideration is, whether he must .also aver, in his ad:ion 
against the justice of peace, that this was done maU- 
ciously and without probable cause. The plea of the 
defender, reqidriug him to do so, is founded upon two 
grounds : laty That this is an action against a judge 
acting judidally, and sheltered by his privilege ; and, 
2i/, That the warrant which he granted was not iat 
commitment, but for examination. 

I have no doubt about this question, which is the 
only point upon which our opinion is at present re- 
quired ; but, as it has come before us by a remit from 
.the Jury Court, and as difficulties have occasionally 
occurred in framing issues, in consequence of not at- 
tending to the principles upon which, in certain cases, 
pursuers of actions of damages are required to conde- 
scend on malice as well as injury, I shall endeavow 
to point out the distinction, and to shew in what cases 
eueh condescendences are required, and where not. 

In a great class of actions of dami^es, malice, or 
the aninms infurian^i, is the basis and ground-work 
of the action. For example, in all actions of damages 
for deftttnatjon, B^fUoe is either im^liedi by legal pre«^ 



Ma a. COURT OF SESSION. 



fr<»i the use of tie words, or mtwt be*^^*^- **^ 
ftartd. It is implied, when one private party speaks stn^^^ 
jii|iirioiisly of another without jiiBtifiAble cause; it^^<^<i<^i^ 
must be proved, wh^i the injurious wwds are Bpoken jtepttraHm. 
by a person in the djsdharge of a duty-«4i8 for instance ^*'<><'^* 
by a litigant in the conduct of his cause, or a master 
giving a character to a servant. In this last mention-^ 
ed case, malice must be averred, because it is the 
ground- work of the action, and because it is not im- 
plied by legal presumption ; and, therefore, the pur-- 
suer is bound to prove it, without which he will fail 
in his action. This would also be the case in a charge' 
of defamation against an inferior judge for injurious 
words used in the course of a judicial proceeding. 

But the foregoing principle does not apply to the 
present case, because malice is not the basis or ground- 
work of the action. By the law of Scotland, as I 
have always understood it, if a party is apprehended 
sod deprived of liberty by an illegal warrant, he is 
estitled to reparati<m, whether the warrant proceeded 
from malice or from error. It is no defence against 
mcfa an action to say that the warrant was granted in 
eiror and without malice ; if the informality and ille« 
^di^ be gross, neither the judge nor the private party 
. defend himself by saying that he had no malice 
the pursier. This is due to. the liberty of 
the sobjeet ; and it is abundantly supported by the 
askhority of the cases of Bell t;. Maxwell, Phillip v. 
liagisiratea of Anstruther, Ramsay v. Coulter, Laing 
•. MdHaon, and Milholian «?, Dalrymple. Ithearefore 
do not thiak it necessary for the pursuer to conde- 
on malice, in order to maintain his action ; be- 
ewerL if it* were proved that there had been no 
on the part of the granter of an illegal war-c 
of impnsbnment, that would not be a defenoe^ 
a pinm t the action* 



10. 



DECISIONS OF THE 



No. S. 



*'w!Ll!?'' ®** ^® defender pleads, 8d7y, That the Warrant 
fitnOiasi V. which he granted was to bring the pursuer before him 



atoddart. 



for examination, and not for commitment ; and the' 
opinion of Lord Chancellor Eldon, in the case of Ar* 
buckle, is founded on to shew the distinction. But 
liord Eldon, in the passage referred to, is pointio^f 
out the distincjtion between the two warrants under 
the statute 1701 as to finding bail. Hie Qext sentence 
of his reported speech, which follows that quoted by 
the defender, is : * U you were to say that, when a 

* party is committed for further examination, bail 

* shall be required before that further examination 

* takes place, you put Him to this inoonvenienoe, that 
' he must gire security to stand a trial whidi he 

* may never have to etond/ This opinion, therefore, 
is no authority for the purpoise for which it was found- 
ed on by the defender ; and when a person sues for 
damages on account of being taken into custody and 
deprived of liberty illegalfy, it matters Hot whether 
the illegal warrant on which he was apprehended was 
granted in order to bring him up for examination, or 
for custody in order to trial. There is no authority 
for any such distinction. 

But here it is most necessary to guard against niis-» 
apprehension, and to remark that, although it is not 
necessary for the pursuer to condescend on malic^ 
yet it is not every degree of error in the warrant, or 
in the proceedings, which will subject a magistrate to 
an action of damages. There may even be errors in 
the procedure, which will be sufficient to render the 
private party applying for a warrant liable in da4 
mages, which will not be safficient against the niagw« 
trate who grants it ; and it would .be liiyust if this 
distinction between the situation of the magistrate 
ifnd the private party were not attended to. Hende it 
appears, by the report of the case of liaiog^againM Mc^ 



ifc.lL COURT OP bession; n 

ttm, that the Coiirt was dear a$ to tie liabiBiy df the i*WoJ^^^ 
flefitor, but doubted as to the magistrate ; and he stnchan «. 
wss only subjected on account of more than one gross stodjMt. 
(^lander in his warrant. The same may be said of ReparaHeti. 
Ramsay v. Coulter, and of Jamieson v. Napier iii^"'^*^ 
1747 (Mar. 17,070). The action proceeded against 
the prirate party ; but no steps were taken against 
tbe sheriff, though he had committed the pursuer on a 
crtBDinal charge without a precognition. 

Independent, therefore, of malice, there remains in 
ftis case, and in erery other of the same kind, more 
than oae questicm <^ law ; Jir^i^ on the relevancy of the 
filets candeseeaded on. Whether they are of such a 
lan^ wid sufBrient to siqqport an action of daiiyages 
agaiunt 9 sagiistrate ; asnd, secondly^ oa the prool^ 
Whether they are brought home to him ? Neither of 
Aese questicms are before us at present ; and it ie bet« 
ter that they should be disposed of in the Jury Court. 
ABd although it is impossible to read the condescen* 
dence and answers in this case without forming some 
opinioii as to the rdevancy of the matter contained in 
fheoi, I ^ not wish to intimate in the slighest iegfw 
vhat WY optsioB is. If any question arises on the 
f9wX^ the jtoy will be directed by the presiding judge ; 
«r, if it IB thought espediient to have it decided here; 
^. qiedti verdict may be taken, or a special case fram^ 
ed. Oft which our jMgtneut may be had. 

Wfe are nest tyrectsdby the remit to say, whi^tiier 
lhi^pwsn» musfe aner ' want of probable cause.'^ This 
is. an Fiuglinh pbrawrecently introduced into our law ; 
IpQ^. there ea» be no. objccAion to it, as it is not tecHni^ 
€1^. aBd (mly e^qossses^ in« shorts plaiii language, a 
laeamng ^idddi ik eaaily undfei«tbod. It has, besideeF, 
Jma afi^ted-into:stM:utes which extend to Scotland, 
fWb as tfa^ atat. MlGea IIL c 141, fbr Ih&protectioii 
flf justices of peace against penal actions, ' uni.ess' af-. 



1st 



DECISIONS OP THE 



No, 3. 



StoddArt. 
Pfifcet*, 



l $Nov.iM a> « j^^ jj^ tjjg dedaration that such acts were done 
strachanv. * nialiciously, and without any legal and probable 

* cause ;' which protection is now extended to all other 
inferior judges in Scotland by stat. 9 Geo. IV. c. 29> 
$ 26. 

The same plea was, indeed, used in difierent words 
in many of our old cases, such as Jamieson v. Napier, 
where it is stated thus, ' if the informer acted banm 

* Jide^ and on any plausible ground of suspicion ;* and 
ateo in the case of Henderson r. Scott, 7th Feb. 1793. 
But I doubt whether there is room, in the circumstances 
of this case, for want of probable cause to be sepa- 
xately and distinctly averred in the action against Stod-* 
dart The allegation of want of probable cause is ap.^ 
plicable in an action of damages, founded on malicious 
prosecution or arrest. In this case it might apply to 
Scott, the party who obtained the warrant ; but it can 
pcarcely apply to the magistrate, who is charged with 
having granted an illegal and informal warrant, for 
which ther^ could be no probable cause. 

Upon the whole, therefore, I am of opinion that, 
while we should adhere to the principle of the case of 
Milhollan, by finding that it is not necessary for the 
pursuer to aver malice and want of probable cause, we 
should not go the full length, which the interlocutor 
appears to have done in that c4se, of finding the libel 
relevant, because that might imply an opinion that 
any error, however trivial — a mere ciibpa lemsstma-^ 
in granting a warrant for apprehension or commit- 
ment, will subject a magistrate in damages — a princi- 
ple against which we should carefully guard, by leav- 
ing the case without expressing any opinion as to its 
relevancy, further than we are required to do, to the 
Jury Court, where the party will be required to con- 
descend upon relevant matter, before he can proceed ta 
trial. 



*».« COURT OP SESSION. W 

I wnid, therefore, propose to find. In answer to"*'*'^***"* 
Ae remit, that the pursuer is not bound to aver malice gt^J^J]^ 
mdwmt of (nrobable cause, but that it is sufficient, toSto^*"*- 
«aiWe him to proceed with his action, if the conde-jr^p;;;;;;;;;^ 
KwdeiM* contain an averment of facts, amounting to '''**** 
«4 a degree of illegality and irregularity on ihe part 
rf die defends as would, in law, subject a justice of 
jnee in damages to the injured party. 

Tbg Lordg Justice-Clerk, Glenlee, smd AOoway, 
tOBOmd in this opinion ; and the following interlo- 
«■«« was pronoonced}— * Find, That in this case it 

* a not necessary- for the pursuer to aver m^ce or ' 
' want of a probaMe cause, but that it will be sufficient 

* to aver such ircegularity or illegality in the pro- 
' cedoxe as will warrant a claim of damages against 
' a justice of the peace ; and, with this finding, remit 

* iatk the case to the Jury Court,' &c. ; • and find no 
' expenses due ta either party, in so far as occasioned 

* by the discuttion on the reaoit.' 

I^ipidimny, Af^JTenzie. Act Dean of Fac. (Moncreiff) 
J^etf, Coddtum, Marthatt. Alt. Sol-Gen. (Hope) 

Ar *"^» C«mii^«*ame. John.Formon, W. S. 

•d So. Sutker/brd, Agents. T. ClerL 

u; 



i 



u mamom qj? thb no. s. 

FIRST mrisiON. 

Krd. IIL 14 N'wemket 18f8# 

FRANC1& GRAHAM 
agaitMft 
OBNERAL DAVID HUNTBR. 

Title to Pursue.—^ creditor tf an heir of rtfi^ 
tail having adjudged the Ufsrent interest of fH^ 
debtor in the entailed esttOe, and having ^tereup&tf 
expede a crown charter, and obtained if^efiMt^ 
in the lande, and having thereqfter^ in dt^ aeHoti 
of reduction of a decree in aheence^ UheUed on th^^ 
different iitlee, and stated that he stood iinfl^fiiii 
^ne hmdsrof the dehtor^faund that he had nof^et 
forth a sifffieient title to pursue^ on^ grotmd inat 
the atj^udicafion of the lifer ent-interest of the heir, 
although it might, of itself be a e^gMent tiOe, dSd 

. not warrant a crown-charter and ufefiment in the 
lands. 

Me Charles Gray, proprietor of the entailed estate 
of Carse, granted two heritable bonds of annuity, to 
the extent of L.850 yearly, in favour of Messrs Bal* 
fron and Fletcher, which bonds were purchased by the 
late Sir William Naime of Dunsinnane, in whose &«• 
▼our infeftment passed in 1802. In making these 
purdiases, Sir William acted entirely for behoof of 
CSiarles Gray's family ; and the price (L.6000) was 
borrowed from Sir William Forbes and Ck>mpany on 
a joint acceptance by Sir William Naime and James 
Farquhar Gordon, W. S. ; and that loan was afterwards 
npaid by a new loan raised on the joint security of 



.nM. 



So. $. COURT OF SfiflSlOK. II 

Sir WittuHii Nairne, James Gordon, aad Charles fiun- *^ ^ 
ta, {the defen&r'B father.) Gn^ «, 

fir WiUiam NainK died m 1811, at which period ^^^ 

thoe was due to James Gordon a balance of I4.62O TUk ^ Fmt 

fiBT ^dvuices, and L.4000 of the curiginal loan. A£ker 

tome judicial proceedings between Mr GordoA «nd 

GcBond Hunter, (the defender) on the one hand, and 

the rtprasoitatiYes of Sir William Nairne on the 

ether, it was extrajudidallj agreed between these 

paEticB, that as much of the imnnities should be acli 

m would pay off the remaining part of the origina) 

ka^ and that the remainder should he disdiarged 

and lenoiBMsed by the heirs oi Sir William Nairne. 

These heirs accwdingly made nxp titles to the annui^ 

ties» which, to the extent of L.498. lis., were sold at 

the price of L.4000, and are now in the person of Mr 

I Maitland Wilson ; and the remainder, amoun* 

to L.S51, were discharged and renounced by 

hfors in November 18I!2, and the deed of renui^ 

reewded in the general register of sasines and 

in December following. 

' la 1816, the pursuer, Mr Graham, granted a loaik 

ta Mr Gray of Carse of L.1500, for whidt he obtain* 

ed a personal bond, dated 2d October, In order ta 

aecare payment of tiiis, the pursuer raised a summons 

ef ad}ni£catien, ' of the defimder, Charles Gray's life* 

* rsat, and whatever more exteasive and vidu^le 

^ sCher r^its and title to, and interest in, the several 

^ lands «id othero after specified, stasd vested in bt9 

' penoiii OF in the persoa of any othep. eoafidentjal 

' friend or trustee, in trust, f4»^ his use and behoof* 

' ia se ftr aa ia no^ inconsisteat with the omditions 

' of a deed^ of oxtail, ke. imder whidb.the said Charles 

^'GnfBowbel^B and enjoys the said laads4md estate 



1« DECISIONS OF THE No. 3. 



Decree was pronouneed agaiiifit Mr Gray in 

Gnham «• of these conclusions of the summons ; ami in the crowa 

n^uit^ charter oiF adjudication there was the foUowing dis- 

nutioFMt^ positive clause (with regard to the entailed estate^ 

which alone it is necessary to notice) : * Ultimoqiie^ 

' Qsurn vit^em redditum dicti Caroli Gray, et 

* ^uodcunque aliud jns vel interesse magis exteiusi- 
' vUm Tel pretiosum vestitum stans in persona ejus, 

* vel in persona alieajus amid pro ejus usu et be^ 
' neficio, quantum non repngnan. conditionibus tal-« 
' U^ iBEtrumenti, &c.' ; * cum omni titulo et inter^ 

* esse, ^.' A precept of sasine for infefting the pur-* 
suer in the whole lands is added, in virtue of which 
the puiTSuer was infeft, and the instrument of sasine 
recorded. 

Thereafter, General Hunter (the present defender) 
as representinjg his fathef, Mr Charles Hunter, raised 
a process of reductioh-improbation against flie fadrs-* 
portloners of Sir William J<?aime, and against Sir Wil-^ 
liam*s trustees, setting forth ihat the discharge and 
renunciation above mentioned was false and foi^^ed^ 
and concluding that, on this ground, it should be re- 
duced and set aside. The parties called as defenders 
in this action were the heirs of Sir William Nairne, Mr 
Farquhar Gordon, Mr T. M. Wilson (the purchaser erf 
the annuity of L.498) and Mr Gray, the heir of ent^L 

The deed of renunciation and discharge not having 
been produced, an intelrlocutor (9th March 1827) was 
pronounced by the Lord Ordinary (Newton) [reducing* 
and decerning in terms of the reductive conclusions of 
the libel ; and this decree was extracted. 

Thereafter, the present action of reduction of this 
decree was brought by Mr Graham against General 
Hunter, on the groimd that it was granted to his- 
prejudice, inasmuch as he was an heritable credi-^ 



Ral COURT OF SE5SSI0N: 17 

toroter the estftte of Carse, in virtue of a dietree of ^^^•J^- 
■djndiisatiou of that estate, and that the decree^as^rah^iQ^. 
toliim, and as to all who had any interest to oppose'^^ "^''' 
it, was pronounced in absence. The summons set'TtHetoPw. 
forth: • Into, The pursuer, upon the I6th day of^' 
< January. 1821, obtained decree of adjudication a*' 
' gainst the said Charles Gray, of the whole estate of 
' Carse^ for payment to him of the accumulated sum' 
' of Ij.2150 sterling, besides interest from the date 
' tliereofy and eicpens^. That, upon this decree, the' 

* pursuer expede a charter of adjudication in his fa* 
' TOOT, which bears date 5th July 1821, and is regis-' 
^ iefed the 11th August said year ; and, upon thi^ 
' charter, the pursuer stands infeft in the estate of 
' Carse, conform to his sasine, dated the 29th day of 
' August 1821, and recorded in the general register 
' ofsasines the 31st day of the said month and year ; 
^ which several writings are herein referred to, and 

* held as repeated, and will be herewith produced as 
' the pursuer's title to insist in this process; in 

* virtue of which titles the pursuer acquired right 
^ to the foresaid discharge and renunciation grant- 

* ed by the heirs-portioners of the said Sir Wil- 
' liam Nairne, and of his trustees, in favour of 

* the said Charles Gray,* &c. ' 5th, That, so far as 
^ r^ards the pursuer, the foresaid discharge and 

* renunciation is a title in his favour. He has a vested 
•* right and interest therein in virtue of his infeftment, 

* and the defender is barred from insisting in any ac- 

* tion to create or revive an extinguished debt on 
' the estate of Carse, to the pursuer's prejudice, which 

* has been legally and validly extinguished and dis- 

* charged by the parties having the undoubted and 
^ unqaestionable right to do so/ &c. 

' As a preliminary defence it was mmntained — 

B 



1;8 DECISIONS OF THE I^o. S. 

"s^!^;^'' That the jtosuer had no title ta challenge the 

Graham V. decree in question, ' not only because the adjudi- 

" °^* ^ cation itself, and all that can legally follow on it, 

Tuu to Pur. < is altc^thmr insufficient to attach the lands tbem- 

' selves, but merely Mr Gray's liferent right ia the 

' lands, which is an inept and ineffectual nuide of ad-' 

^ judication, ineffectual to constitute any real ri^bt, 

^ not proper to carry Mr Gray's estate and lauds, 

' which is an estate in fee, nor capable of any higiher 

^ effect than an assignation to maiUsand duties. The 

\ pursuer, therefore, in this view, is i^till only a per« 

. 1 sonal creditor, and cannot, as such, be allowed to 

\ pursue any action, the object of which is to set aside 

' a real security created over the lands.' 

The Lord Ordinary pronounced the following inter* 
locutor : — ' Finds that the dispositive clause of the pur-> 
^ suer's charter of adjudication (which is precisely con* 

* form to the decree of adjudication on which it pro- 

* ceeds) in so far as it respects the entailed estate of 
^ Carse, does not convey the lands themselves ; but 
<* usum vltalem reditum dicti Caroli Gray, et quod- 
f* cunque aliud jus vel interesse magis extensivum. vel 
** pretiosum, vestitum stans in ejus pexBona, vel in 
^' persona alicujus amici fiduciarii, ut JSideicommissarii> 
<^' in fiducia» pvo ejus usu et benefido^ quantum non re* 
«< pugnan. Conditionibus talli^,' &ce, : Finds that the 

* conveyance of Mr Gray's liferent was inept, he be* 

* ing no liferenter, but fiar of the lands, though a 

* limited fiar ; and that the addition of the indefinite^ 
^ more extensive, and valuable right which he might 
.' happen to be vested with, either in his own person 
^ or in that of a trustee for his behoof, is not such as 
^ could constitute. a prpper feudal estate in the piur«» 

* suer, or to warrant his infeftment in the lands: 
^ Finds, that the preempt, which authorizes, in general 



lfc.f. COURT OP SESBttW. 19 

• tanM, * SMinam totarom et inte^natmi pneAL terra*^^ ^^^ *•*•- 
•nun, decimarum, &c* secundum formanL et tenoremonlmT^ 
'ntedict. carte nostra;* although a sufficient war-^^^^^* 
' nut for rafeftment in the other laada and subjects Tui^i^fmm 
^ directly eonveyed, was not snch^ m reg^srd to Hie*^ 
' entafled estate, as to which all that is granted is a 
' i%ht ci liferent which did not exist,. o» lunhe mwe 

* extensire right, the nature of ^riiich is altogether 
' undefined ; therefore, sustains the objections to the 

* [nrsaer's title, that he has no Talid'iifeftBBent, nov 
' feudal estate in the tailzied lauda ; a$soilziea the de» 

* fcoders, and decerns/ &c. 

When the case came to be advised^ on a reclaim* 
ing note for the pursuer, the opinion of the Court 
afypeared to be that, although it was a competent 
proceeding to adjudge the liferent interest of ail 
beir of entail* in the entailed estatef, and that such 
an adjudication might be a sufficient title to pur« 
me such an action as the present, it could net be thd 
foondation of a Crown charter and infefttnent in the 
lands: That, in the present ease^ therefore, if the 
tammons had libelled only on the decree of a^judica^ 
ti(Mi» by which the Bferent interest of the defender 
liad been attached, it might have set forth a sufficient 
tiQe to pursue the present acthm ; biit it had gone 
Ivtber^ and had stated that the piirstier had adjudged 
fte lands themselves, and had been hifbfl thereiui 
^hich was an erroneous statement, as he had not ad-> 
foigeA the lands^ but merely the liferent interest of 
the defender in them, and could not be^Tafidl'y infeft 
in tiiem, because there was no prc^r wammt for the' 
crown-charter and infeftment which he had ex^de ; 
b riiort; that the pursuer bsAnot fMperly libelled oil 
the only sufficient title he had« ti%. his decree of a^u- 
dication, but had libelled on a title which he had not, 

B2 



aor DECISIONS OF THE Nb. 5. 

^ ^.^^^' y and could not have, vk. a feudal investiture in the 
Graham «.' lands themselves. 

Huntor^ Their Lordships, therefore, ' Adhere to the interlo- 

Tiue to Pur. ^ cutor Complained of, so far as it dismisses the pre- 

'^^ ' sent action, without prejudice to the pursuer bring- ^ 

' ing a new action upon the rights founded on hy 

' him ; hut alter the interlocutor so far as it assoilzies^ 

* the defender from the present action.* 

Lard Kewkm^ Ordinary. Act. Bairdj More. James' 

Brown^ Agent Alt Skene^ RtUhcrfbrd. Jkx. Pear-* 
son, W. S. Agent. H. Clerk. 

C. 



SECOND DIVISION. 

. No. IV. 14 Nwember 1828. 

BARBOUR 

against 

M'CAUGHIE AND Others. 

Process^ — In an action for payment qfa bill against 
the acceptor's representatives, a statement an the 
part of the pursuer, for dbviaiing the defence of 
prescription, that he had discovered, from the re^ 

* cord of the sequestration of one of Ae indorsers^ 
awarded upwards of twelve years before, that the 

. bUl had been produced by him along mith the peti^ 
tionfor sequestration, held not to be a res noviter 
veniens, entitling the pursuer to add it to the closed 

. record. 



Ha 4 COURT OF SESSION. ». 

14 Nov. 1828. 

Ax aeoeptance of Uie late Thomas M'Caiighie for Barbour «. 
L50, dated the 28th September 181S, and payable M'Cwighk^ 
dixee moBths after date, was indorsed by the drawer .— 
to Mm Miiir, and by him to a third party, who in- ^^^^^^^ 
dorsed it to James Barbour. In 1826, Barbour 
Inmght an action against M'Caugfaie*s representatives, 
kf<»e the sheriff of Dumfries-shire, concluding, inter 
ff&i, for payment of this bill. The sheriff sustained 
die defence of prescription, uid assoilzied the defend- 
ers, the pursuers hairing declined a reference to oath. 
The cause was advocated ; and revised reasons of 
adFoestion and answers having been lodged, the advo- 
cates pn^posed the following addition to the record t 

* Withr^ard to this hill, the advocator has discover- 
' ed, from the record of this Court, that it was pro- 
' dueed by him, with his oath of verity, as a ground 
' (^debt, along with a petition of sequestration, pre- 

* seated in the year 1814, by John Muir, one of the 
' indorsers, and in which petition the complainer con- 

* CQiied, as being a creditor of the said John Muir, by 

* Tirtue of the said bill. On this petition sequestration 
^ was awarded on the 18th August 1814, as appears 
' from the act of sequestration herewith produced. 
' And the advocator pleads that prescription on the 

* UD was interrupted by the production of it as a 
' ground of debt in the sequestration of Muir ; 54 

* Geo. III. c. 137, sect. 52; 

Insertion of this new statement in the record was 
asked, upon the ground of res noviter veniens ad notu 
tia»; but the Lord Ordinary ' found that the said 
^ statement cannot be held as ree noviter veniens, and 

* in hoe statu refused the same.' The Lord Ordinary 
added, that he * thought he was bound by the act of 

* sederunt to refuse as above,' — ^referring, as was mx^ 



m hbcbbions of the if o. 4. 

u w^v^jm deretood, to the act of the 12th Nov. 1825, sect. 68, re- 
Bariwur «. Yb&vb to pioceduTO in ibe Court of Session.* 

j;— -> The adromtor r8e&Et«ei^;-*-«nd M^ Cbicr^ unani- 
f^'^^^ mously coBCitrred in the fiqding of the interlocutor. 
Their Lordships observed that it would be dani^erouB 
in this ease to sustain the plea <>f res namter vefdetU-^-^ 
plea of forgetfulne83 of a judicial step taken by the party 
himself, with the view of operating payment of tlie bill 
in question. For how pould it.poasibly be known that, 
In point €i fiiet, iuterruptioa <d prescription had nat 
previouBly been pleaded iu fic«isequenee of the circum- 
a4anee of tlie produdaon <£ jOie bill in Muir's aeqpiesT 
tration having been f oi^ot by the advocator ? 

But dieir Lordships wetie not prqMured to hold that . 
the objection of fxunpetent and ottittedj which the ad^ 
vocatOT attempted toex:clude hy thepleaof revnoo^fen 
was applicable to proceedings in the infmor courts 
«K>twith8tandlng the terma of the late act of sederunt 
lefierred to by the I^ord Ordinary. The Court, there* 
fore, remitted to his Liordi^p ^ to hear parties on any 
^ other grounds that may be stated by the advocator 

* for admitting the proposed additional statementt 
^ productions,, and pleas, different froin that of res 

* noviter veniene ad notitiam,^ &c. 

fjord MackenaAe^ Ordioary. For advocatov, R. Thamwfu 
W. Dalrympley Agept For respondent, J. McNeill 
R. Welsh, Agent. T^ Clerk. 

8. 



* Tke ptovuioB alluded tobas beaialieiod kj Ibe exiBtiag 4M;t ^ ise* 
4eruiit, Uth Juljr ^688, iNd» iect. 86 |Ad 4^ 



lfa.5. COURT OP BESfllQlf. fs 

SBCONB BiriSION. 

*«• V: 15 NoMmber 16S& 

HAMII/FON 
agmmt 
CUTHILL AND Othses. 

PiocBss,— Act <>F Sboekitnt 11th July 1S88.*^ 
Iti9€&i9tpe^ntfaiPtheJiiUlge^^er the record is 
Ased.to order pn)dne^mff a wrMng which war 
freifumdy wi&in the power i^ the party who wishes 
hJimndonit,notufiAsta9uUngthe BBth sectioa qf 
Ae act of sederttHt^ which proh^fits the party Am* 
s^/hmprodtu^$tinsuchcirc9im8tancesJ(^ 

This was a process of advocatkm, in wldehf after Ao 
reeord was dosed, it appeared to the Lord Ordinary' 
flat ft would be jiroper to examine^eertain banlc books; 
widi reference to the bill transactions between the par- 
^ A diligence and commission were accordingly 
granted for litis purpose, with consent of parties, and 
were reported. 

The advocator afta*wards proposed to produce a 
letter of the opposite party, which was then in the 
Iiands of his own country agent, with whom it had 
Usance the commencement of the process. The 
Lord Ordinary, having doubts of the competency of 
thiB proceeding, imported the point verbally (2l8t Feb; 



* Thif qneitioii oeeumd fimder the act of sederunt 12th November 
ie»; trat the proriskm is re-eoacted| with liUle ▼uittiony by «ct of 
Ntemt nth Jul/ 18S8^ sect. 55. 



a* DECISIONS OP THE No. & 

15 Nov. 1828. 1828) ; when the Court generally expressed an opinion 
Hamilton if. ^^^ ^' ^^ ^^ ^^^^ Lordship's power to order the pro- 
Cut boi, &c . duction, if he ttioiight it necessary, for. bis own infor- 
Proceu. mation, in deciding the cause, but declined to give 
nXfS*^™ any positive instruction on the subject. His 
Lordship accordingly refused to allow the production, 
by the following intpploqutor and note : * 22d Feb, 

* 1828. The Lord Ordinary having considered the 
^ motion on the part of the advocator, to be allowed 
^ to make a production, in respect of the 45th clause 
'- of the act of sederunt, 12th Nov. 1823,» by which 
^ it is enacted, • That, after the record is closed* it 
^ shall no longer be competent for the party to pro- 
^ duce any writing whioh was jn his possession, or 
^^ within his power, i^t the time of comj^eting the re* 
'Vcord/ which only follows out the spirit of the p^o- 

* visions in the judicature act, as to the production of 
^ writings ; finds that it is incompetent to allow pro- 
'- duction of this document, whi^h, at the qIo^ of the 
^ second debate in this process, in which the recor4 
' had been closed, in the month of May 1826, was,foj( 
1 the first time, noticed and offered to be produced, al- 

* though it appears to have been all along in the posn 

* session of the country agent of the party, more es- 
' pecially as no sufficient reason has been given why 
^ it was not noticed or produced at an earlier period 

* in the cause.* Note, — * The Lord Ordinary does 

* not conceive that he is invested with any discretion- 

* ary powers upon the point in question. By the 

* forms of process, it was either competent for the party 
f to produce this document (which was within hia 
^ power) at the present stage of the process, or it was 



« This clause is re-enacted by the 55th section of the ac( of sederunt 
nth Julj 1838. 



Ho. L CXnJRT OF SESSION. «5 

•boL If it was not Competent, the Ordinwy c(>wld **^JJ^;^^ 

' floi allow productioBf ad. little as he could previeptHaxnaton o. 

'tbeparQr from producing it if it was competeyt,^"^' ^^^ 

' He thinks himself even bound to refuse leave to pro-^ProecM. 

^ dace this document now, although payment of thef^^X^'f^^ 

' previous expeoces were offered (which, howev^, is 

' not offered) ; and, with the utmost deference, any 

'. odKT interlocutor would r&-ioitroduce into our prac^ 

' tice the laxity .of procedure formerly objected to^ 

' fay which a cause assumed difierent aspects at diffe* 

' rent stegea of its progiress, in cons^uence of the 

* productioiis of writings till then .withheld/ 

On the 86th February> the Lord Ordinary decided 
the cause on its merits, against the advocator^ who 
diea reclaimed again^t both these interlocutors, and-— 

Pleaded — ^The production is render^ necessary, in 
dtt present case, in order to obviate inferences di;awn 
by the opposite party^ from writings already in pro- 
cess. It is, therefore, not one of the writings on which 
Ae party founds in order to support his plea, but is 
required for the purpose of explaining, and rendering 
iotelligible, productions made by the opposite party ; 
sod, although the act of sederunt prohibits a party 
iiioin producing such documents, which were in his 
own power, of his own authority, after the yecord is 
dosed, it must, nevertheless, be competent for the 
Judge to order the production of such writings at auy 
time, for the information of his own mind, in order to 
attain the «ads of justice. 

The respondent anewered— The words of the act 
of sederunt are podtive. Every litigant has an op- 
portunity of seeing the productions made by the op- 
posite party at the revisal of his condescendence ; and 
U 18 bound to produce all the writings which he 



M imcmosa of trs no. s. 

w W<m im t^hjcn necessary to obviate their effect^ b^re he con- 
ttonfltcmo. ^^^ to ^^^^ the record. After that period, it is tke 
Cttt fam^to intentiou of the act of sederunt to put an end to all 
fvoMft. new productions of writings which were within the 
iiX^^tSS^V^"^^ of tile parties ; and the ^cmstractioa 4S<Ateiid€d 
for by the advocator would obviously revive all the 
laxity of the former procedure. A pajrty, according 
to him, may keep bade a writing which he has ne- 
glected, or is afraid to {Nroduee^ till after a cause is 
ripe for deeidon ; a»d ihen, when he finds it likely to 
go against him, has only* to* iafdrtn the judge oi ika 
existence oi sadi a doeument, which, to be sure, hi 
(the party) cannot BOW produce; butof whidiit will be 
necessary for his X^ordship to order produetton^ for the 
purpose of doii^lttrijoe between tke parties. 

The Courts before answer on the merits, veealled 
the interlocutor of the d£d February, and ordered the 
writing to be produced. 

Lord Ordioary, ifedwyn. Act Dean ^Fae. (Monen^) 
Monieiih. Alt Jamemn^ R. Thornton. A. Hamitf 
tonf W. S. and John Mowbray^ W. S. Agents* F. Clerk. 



IcCL OODRT or SBflBIOH. 17 

SECOND DIVISION. 

N& VL 15 November lSa&. 

MARGARET MCLAREN 
agmmet 
BUIK. 

Smf^^A per$M appeari^ from tie register to ie 
trm amd sole cumer of a vee^l, tmd having power 
to oMfffie ike abeobUe eenirol 4^ its management 
ii UttUe fair ftniMnge made to it^ tdUum^ km 
right mojf be quaU/led by a haekJHmd to the fa r mer 
mmer, who eomiimted to act me maeter of the veeeeL 

A mtutar being bomnd to keep a Mp ineHred in a ere* 
dUm^e name ie not enMiled,toith0Utepecialauthoriijf, 
t9 enter it in an aeeodationfrr mutual aeemrance^ eo 
m to make Ae creditor a partner in that society* 

Ik 18SS, Mis Margaret McLaren made a loan tp Wil« 

liam Scotland of L.300, and obtained in security a ven^ 

la&oiiiexfacie absolute, of the sloop SSealous (^ Kincar- 

diitt. Missives were at the same time interchanged b&f 

tveea them, in which the true nature of the transaction 

ifpeared — ^Mrs McLaren bmding herself to reconvqr 

Ike Teasel upon puymait of the principal sum, with 

mtflRSt and ^^enses; hut declaring that, in the 

BMBtime, 'id» was to be ^ the true owner of the ves^ 

« ad until the bill be paid,* with power of sale^ &e. 

Soottaod, on the other hand, took upon himsdf the 

mk of sailing, and use of the vessel, and the expense 

d ke^mg her in rq»ir, and also bound himself to 

keqp her onnstantly insured in Mrs McLaren's name 

totbe extent of Xi.4MX), for her security during the 



W DECISIONS OP THE No. 0. 

15 Nov. ^ coiitinuance of her right A new register and certifi- 
M«Laxen «. cate was obtained upon this vendition, in Mrs M'Liareu's 
^°* ^' name, at the custom-house of Perth. 

sup. Scotland, who had previously been sailing-^naster, 

as* well as owner, of the sloop, continued to take 
charge of her as master, along with his son, till 12tli 
May 1825, when Mrs M'Laren, being dissatisfied with 
his conduct, and doubtful of his credit, put in a new 
master, and began, for the first time, to assume some 
active charge of the vessel. 

In July 1825, she sold the vessel ; and the proceeds, 
after paying her debt, with interest and charges, left 
some balance, which remained for Scotland's behoof in 
the hands of her agait, and was there arrested by ids 
various creditors. 

In 1827» Bulk, who was a rc^ and sail-maker in 
Perth, raised an axstion against Mrs McLaren in the 
'Admiralty Court for various accounts incurred during 
the period when she was registered owner of die sloop 
Zealous. These consisted of repairs and fumishijig8» 
beginning 26th September 182S, and ending 10th Ja- 
nuary 1824, made to the ship by order of Scotland, 
who at that time had charge of her as sailing-master ; 
and, in addition to these furnishings, the pursuer ad- 
ded to his account two items of later dates, viz. 8th 
April and 1st May 1825, of drafts for LJZ. 198. 5d. and 
L.4. 178. 4d. payable in three months, drawn upon 
him to account of the sloop Zealous by the .secretary 
of the Union Insurance Association of Dundee^ in 
whose books the sloop had been entered. This ap« 
peared to be an association for mutual assurance, in 
which many of the vessels belonging to Perth and 
Dundee were entered, the owners becoming liable for 
all the risks incurred in proportion to the values for 
which their own vessels were insured ; and the drafts 
paid, by Builc were the. proportion effeiring to the in^ 



sand ?alue of the Zealous, of the losses incurred by ^^ ^^-^ ^ 
Ae aasociadon upon other vessels during the season. M^Lann «i - 

Buik. 

Mrs M'Laren pleaded, in defence against this ac-^ ship. 
tioii— I. The furnishings were all made to order, and 
OB the credit of Scotland ; and the defender, although 
r^Btered owner, cannot be made responsible for them, 
having been in fact only a mortgagee, and having taken 
ao diarge or management of the vessel lintil the 12th 
May 1825; see Baker v. Buckle (C. P.) 7 Maore^ 
S49 ; Jennings f>. Griffiths, Byan and M&ody, 42 ;r 
and Fraser v. Marsh (K. B.) 26th Jan. 1811, 13 Etut^ 

as8. 

II. The account of furnishings is prescribed, the last 
artide being dated 10th January 1824, more thaa 
time years before raising this process. 

III. Hie defender can in no event be liable for 
kases incurred by the Union Insurance Associatiour 
m whidi neither the master nor the pursuer had any 
anUuHity to make her a partner. 

The pursuer OMwered—I. The defender was sole 
roistered owner, and had complete power over the 
nmd from the date of the transference to her, which 
she afterwards ezeidsed by removing Scotland, and 
potting in a new master at her pleasure. The cases 
quoted on the oppoaite side only apply to a person 
whose name still appears on the register after he baa 
eeased to have any conjpem with the vessel, or to an 
oimer who has parted for a time with the conunand 
md management of his vessel.by contract of freight, 
or charter party. 

If. The triennial prescription of the account was 
iaterraptedf firsts by attestation of the master, Scot« 
kid, of the aceoant lodged in process ; secondly, by 



» DBCISIOirS OF THE Nb. 6. 

i«N;or. i82&aii action raised upon it in the sheriff-court in 1935, 
H'LmBm "^hich was dismissed on the ground of incompetency. 
^^ ^* III. The mode of insurance was the cheapest^ and 

gUp, most usually effected upon all vessels sailing from 
Perth or Dundee. 

The Judge-Admiral sustained the elaiin» and de» 
cemed in terms of the libel. 

The defender presented a bill of suspenmon ; upon 
advising which with answers, tiie Court were unaai^ 
ilnously of opinion, Jirsty that no daim could be made 
against Che suspender for the amount of the drafts of 
the Union Insurance Association, as the master had 
no power, without special authority, to enter the ves- 
sel in Mrs McLaren's name in their bocdos, thereby 
making her a partner of the Company, and incurring 
h responsibility so serious. SecomUtft that the sus«> 
pender was liable, not only as registered, but as true 
owner of the vessel, for all furnishings nmde Vy order 
of the master during the time thai the sloop stood iiE. 
her name, when she had the effective command over 
it, and Scotland was to be considered only as her ser- 
vant. Lastly^ that the attestation of the master, 
which only acknowledged the fiumishingat and wat 
not dated, could not prove resting owing at any tkne 
within the term of prescription^ and consequently did 
not interrupt it; but, before further answer, their 
Lordships ordwed minutes on the plea, whether an ao« 
tion raised in an incompetent court could ojieiate as 
an interruption of the triennial prescriptiba. 

The following interlocutor was pronoimced !«^' The 

* Lords, &c. find that the claims for what are deno* 

* minated in the sununons insurance losses on the 
^ ships Dandy and the Crichton, are not of a kind ta 
' subject the suspender, on the ground of her liabiUtK 



flaC QPURT OF GPSSQIOif. tl 

• Idt pnoMuns of loiBiiiaiice on the doop Zealous ; aad^ ^^ ^^^* ^^^ 

* to Ae extent of any such claims, alter the iAterlo-mq]^^!^^ 
' mtor of the JudgeKAdmiral com^ained of.; wirtain^ ^' 

' Ike defenees ; asaoUzie the saapender from the con- si^ 
' diBioiis of the action relative thereto ; and decern : 
' Finther, find that, for the coat of repairs and ftir- 
' nishiiigs of the vessel, such as have been claimed and 

* eonduded for by the respondent, the suspender must 

* beliaUe, unksa the daim ha^ heen cut off Iqr the 

* MMtaUnry triennial prescription; repel the plea of 
' iotenrupti<m founded on the alleged attestation of 
' tke account of furnishings by the maister, and in so 

* §ar^ also, alterthe interlocutor complained of; but, 

* before farther answer, allow the parties to give in 

* aumitea on the plea of interruption^ founds on the 
^citation given by the respondent^ and subsequent 

* yroeeedii^ before the sheriff of Perth^' icc 

Act Deam cfFac (Mancreiff'y Jamewn. Alt. Buchanan^ 
W. Murnw^ W. S. and Arch. Duncan, S. S. C. Agents. 
T. Clerk. 

V. 



FIRST DIVISION. 

No. VIL 20 JVowfli&^ 18S8. 

JAMBS BUCHANAN and WILLIAM 
PATERfiON, 

Thk magistrates and TOWN-COUNCIL 
of Dunfermline. 

PiiEscBiFriON.-~7^ triennial preserij^im does; not 



m IXECISIONS OF THJ& I«b. 7 

Buchanan, jx, a stotutory sequesttra4um^ wtd reported upon by an 
Tf Di^m!^ €UXGuntant emjUoyed by the iruetee, aWiough :mtkin^ 

^®" three year^ from the date iff the last article in the 

Preicriptum. accoufit ; it appearing, Jrom the books of the trmteei 
that such acoount had been incurred^ ond n^ pay-^ 
ment made. . 

4 

Upon the sequiBstration o£ Robert Huttout lessee pf 
the Dunfiermlinp ColUei^ (1st July 1807)> the JVlagis« 
trates of Dunfennluie and others claimed, .and were 
ranked as creditors of bis estate. Joha Wilson, th^y. 
provost of' the town, (now deceased) was chosen .trus^ 
tee ; and, on accoifnt of the creditors, adopted the iease^ 
and carried on the colliery, appointing John Ged^es 
oTsrseer. During this, period^ the pursuers f urjiisb^ 
wood for the colliery to the amount of L,64 ; aod their 
account (ending the S17th December 1810) was doquetr 
ed by Geddes as correct* The right of the lease of tha 
Colliery was sold by the defenders in 1811, but at a 
loss to the creditors, who employed Mr Wotherspoon, 
accountant ia Edinburgh, to make, up a state of this 
loss, and tP allocate it among the several creditors. In 
the report made up by Mr Wotherspoon, and dated 
5th December 1812, the sum due to the pursuers was 
included. 

In 1823,. the present action was brought by the pur- 
suers against the .Magistrates and Town. Council of 
Dunfermline, as the creditors of che sequestrated estate 
of Hutton, for payment of the furnishings, under d^. 
duction of certain payments in coal, by which the debt 
was reduced to L.58. 28. lOd. the sum libelled. 

The triennial prescription being pleaded in de^; 
fence-— 

It was argued for the pursuers-^1. That a debt due 



No. r; COURT OP session. m 

for fiBBkdiB^ to a body of creditors dU a Bequeitrat-^^^^^ ^^^ ^ 
flde«ste» contmuing tbe trade of the blUikrupt, wasBu^^^i,^]^- 
a^ iknllj vouched and constitated bjrdn «»o«J^t do-^^«^|^^ 
qoeted bf tiie managaf, conducting thie tfade by theiir fermJUnA *; 
ifVQHitment, and for theii^ behoof. riZ^m. 

' 1 Hat the subaistenoe of a A?bt bjr a bodjr of cre« 
£ton was ggfUciently established by the entry of stich 
Mt in the trustee's report, as being still outstanding* 
pRKiiylion being fliereby interrupted or prevented } 
LoBetf. Hie Magistrates of Brechin, UthNdr.l808« 
1 That Hie ordinary presumption of payment dilrii^ 
tte years of prescriptidn did not apply to sudt a dtilyt^ 
AetTDSt-estate having been exhausted, and the trusteer 
lad creditoR having denied their liability therefor. 

4. Hat the whole creditors claiming upon a aeqties-; 
tmted estate, and cariying <m the formed tAde oi the 
bttkntpt, were liaUe^ jomtiiy and severally, aa thir 
ptrtaers ot a comjMmy, for furnishings made to them. 
in the course of that time« 

l%adSn/ in answer-^ ' 

1. That, after the lapse of three yean^ actidn ebuld 
M* be sustained on such a daim as thd present, tmtess 
b& tiie original constitution and the prc^lenl subeis- 
tmee of the debt were proved by the writ or toth of 
diedefender« 

1 That a community or cor^ration, as such, was 
sot disqualified {rem pleading prescription. 

5. Tliat stidi defence was not exdiidedi although 
AemcRhanf 8 account might have been doqueted with* 
b the years of prescription by an overseer or manager 
vtii^ for the alleged debtor, however probative, re^ 
pilar, and express that attestation might be, as such 
attestation could not be considered as the writ of the 
^Ator. This was expressly decided in the case of the 
Mennial prescription of bills ; Ferguson r. Beihune, 

C 



3* DECISIONS OF THE No. 7. 

^ ^'^^ 7A March 1811 ; also, as to the triennial prescriptian, 
BBAananTftc^'* the c$8es of Gttthrie p. Marquis of Aninaodale, 11th 
« The Mjigislyeb. 1734^ -Eli&ttr flfor, 11,101); and. Brace and. 

iTfttes or Uun- ^ ^ ^ ^ ' ^ 

fermiine. Co. «. ^eat, IDtk Dcc. 1765> (^Jlfor. 4056.) 
p^^j^^TJJ^ 4. Supposing the attestatiba to be considered as €km 
writ of the party, yet having been made witbin .tiie 
period of prescription, vis; in Jaauary 1813, wbeveas 
prescription bad not run until December following, ii 
did not prqre the subsistence c^the debt at this latter 
period, ibr the presumption still held that the debt 
had been paid before the lapse of the prascriptive pe« 
riod ; asd to prove resting owing, therefixre^ it was 
necessary tbst the writ should be aeknowledged^dub^ 
sequent to thiat period. This was the case widi fb»« 
gard to the markings of interest upon a Ull . of . ex- 
chai^r wfakh, if made before die yeara of prei9cri|H 
tion had run, did not prove resting owing, beeanse tbs 
diibt might have been paid ifiereafter. v( 

The Lord Ordinary, ' in respect it was stated in 
' the record that the report was dated in 1812, aus- 
^ tained tbe defence of prescription, assoilzied the ^de- 
^ fenders, and; decerned; and found expences duec^ r 

Bat /is Court, on a reclaiming note fmr the pan^ 
suers, ^ altered the interlocutor of the Lord Oiiiinarj»( 
* decerned in terms of the libel ; and found expeooes 
' due totfae pursuer.' 

Their Lordships unanimously held that the enasb* 
ment in que^on did not apply to a debt ineuiredby 
a trustee on a seqi»strated estate^ and appearing^ iriMS ' 
the books kept by the trustee, to have be^tinciirrad, 
andtobe^ill unpaid. 

Lard Meadoxobanky Ordinary. Act Dean g^ Fac. (Mor^ 
creif) Wilson. David Wihan, W. S. Agent, Aft 
Rutkerfbrdj Neave$. AUiJC. Pearmm^ W*. S. AgeHl. 

D.CMl. 

C. 



lb.& COURT OF €»8H!Dlf.. SS 

^CONn DIVISION. 
HkVUL 9a. Ntember \9ilg. 

CHAPMAN 
DONALDSON. 

ihifpnd §9 eo^kpeieni from &e Wutet^BmHe qf 
Qkiffm4i^ike€Srmit(hmrtqfJm^ 

Tin Mnrt c^ the B«iUe<rf the nverand i^di o€ €9}^,' 
oHha Water-Bailie Ceiuri of Glasgow, was Tecogsked* 
•«BMillrted bf the following daiise of a ehartcr in' 
tmm of thift burgh of 6hu|^, gmi^eiL bf Charietf 
I ii \%9S i"^^ Ac etiam libertatem^ tavaa, et posses-* 
' iaoBm, ' quma diet, borgog ooeter de Gtasgow, et 
' MH^ifllfa tag hiBdNwruot, d%0ndi unnin iMdlivuni qui 
^wtprnprnsutrli^ Winter BMi0, infra diet ftiviamde 
'Ctfie^ulH nare flmt et xeflu^ et infta iattfgnui 
*^dadisej«6doB subtas pontem de GUasgDw; ad Ue 

* tibdotaaey et emrigendi omnaBi in|iaia8 et eaor<A 
^nMes Mper dicto flimo commisA infra bonded 

* qmdem.' A subsequent royal chasBter^ alao in fa^ 
of the fcfurgii, granted in J£t8, contains these 

'^ Ac enm libertate didti ftsvii.de Cljrde, 

|i l«tere^ a pomMe deiGUasgewir ad ifo Qoek* 

neCBOn cum libertate et ifwawnnifeite naviunl 

* fmkaaM,Me^tkeroadU ^ laahipreen, Ne#ai^e, 
' Fettef ttie Big (places in the neighbourliood of Qri^ 
^fA) ' vel alicujns alteritts na^ilim stationis infra 
'^ok folium infira pontem did Glasfj^ et Ue CSock- 
' itaae^ prediet^ ipm onerando et exonerandonmerdmoH 

C2 



96 DSCIBIONS OF TEIE No. & 

g iNov. m 8.< ^i^^ gj Yyona ad diet burgum, burgen. et habttentes 
Chapman «. ^ spectan/ &c. ^ Preterea uo8» cum consensu predict* 
^^^* °^'^° ' * creaviraus, fecimus^ et constituimus^ Prepositum et 
jurUdiotion. ^ Ballivos dioti burgi nostri, eorumque successwes^ 
Jifc^^^mtt ' JiilflticiarHW pacu infira diet, burgum nostrum, &c.«t 
^^ ' infra diet, portus de Inchgreen, Newarke» Pott of 

* the Rig; ac etiam cum potestate diet nu^tnti^ 
^ bus diet burgi de Qlangofw, eligendi annuatim balli* 
' vum qui aqufe presit, ad corrigendum. injnrias et 

* enonnitates super diet flurio oommittendas^ iidbai 
' bcmdas fflipra specificate 1 

By the 80 Geo. II. c. 4S, § S4, establishing the 
right of appeal to the Circuit Court of Justiflswrf^ ill is 
declared : ^ That it shall and may be lawful te and 
^ for: any party or parties conedving himsdf inr thsM-f 
^ selfes aggrieved by any iaterlocutw, decree, sqb^. 
^ tence, or judgment of the sheriflTs or Stewart's oouit. 

* of any coun^ or stewartry, or of the courts of any 
^ royal burgh, or bm^h of regality , or baroiqr^ or of 

* jBJfy court of any baron, or other heritor, having sudr 
^ jurisdiction as is not hereby abrogated, or taken 
^ awayt wheve such interloaitor, decree, ssntenee^ w 
f judgment, shaH be concerning matters crintlmd^ of 
*. whatever nature or extent the sasne may be^ ex« 
^ ocpt all cases which infer the loss of Itfe or de^. 
f. meodiratioii, or in matters civiU where the mbjlset^ 
' matter of the suit did not exceed in value .tb0 
^ sum of L.12 steriing, to complain and seek retifif 
f against thesame by af^al to the. next Circuit dom^ 
'. of the droiit wherein wch county^ sbire^ or stefraafei; . 
^ ry, roynl burgh, or bui^h of regality mt barony, -fofei 
^ such harony or estate shall lie, so as no such appeat 
> be competent before a final decree^ sentence, or jud^ 
.* mcnt pronounced,* : : 

In an action before tbe rWater-Bailie of Glasgow 4it 
ihe instance of Chs|mian, tacksman of the rfver istsd 



IhL & COURT OF SESSION. 37 

• daes leviable at tbe Broomielaw of CHasgov,^^^^^' ^' 
Donaldson, lor payment of certain duties on Chapman «. \ 
\ imparted by tbe defender, the Water-Bailie hav-P^"^^"- 
L judgment in favour of the pursuer, the cause juHuHeHan. 
wm appealed to the Circuit Court of Glasgow, whenf^f^^^^ 
ft vsB objeeted by the piureuer that no appeal to that^^ 
CtaarC lay agmast any judgment of the court of the 
Waler-Bailie. In consequence of this objection. Lord 
ADovray, after advising with the Lord Justice-Clerk, 
laho a judge on this circuit) certified the cause to the 
Coort of Session on cases. 

li s ap p o r t of Ae objeetioA, the Kspbndent pleaded 
—The enactmasit giving the appeal to the Circuit 
OMvt omtams no expi^ession having reference to in-^ 
ftrior eoorts generally, nor, in particular, to any ad-^ 
■indty jwrisfficticm, wMch is exdusively the jurist 
fictisii exerdsed fay the court in question. 
' It is said that the statute gives an appeal from thd 
* tmatB oiBoy Royal Burgh ;' and that the court of 
i» Wafter^Bailie is a court of thabui^h of Glasgow; 
Bat^iw expression plainly means the proper burgh or 
Bdfie-GouiC No appeal, accordingly, is competent 

from the Dean <^ Guild Court ; and the only 
tar maintaining that the court of the Water*' 

1 18, in the sense of the legislature, a court of the 
htifgtk 4i£ CHasgow, must be that the ma^trates of 
fkH^a^gk have, in virtue of the royal grants, the 

' of appointing the jndge of that court. But this 
Bever eaa conistitute the court a court of the 
lejalBargfaof Glasgow. The Water-Batlie, although 
ksiceR^es Ina judicial appointment from the burgh, 
dvs not oSoBto in the capacity of cme of its magis-^ 
tntes; and they, on the other hand, have no control 
4ser the ^poceed^bogs of his court, 
in Rspect to temtory ako, there is a complete dis« ' 



sp imomom oir the isto. 

^^^^^l^tindtim betweea tbe Bufglv^owt Md the court ^ ti 

Chf^mn V. Water-BidUe. The li^tter is, iiq 4oubt, lield in Ola 

^^^^^^^ gow ; but its jnrisdiettoa is limited to putttero occni 

jwriidMom. TiBg OH the rlv^T aod frith of Clyde, and has no iT 

//?t^^ ferenee to the territory of til^ burgh of CduBgow as 

^ royal bui^h. On ;th^1^ther hand, the i^aagistrab 

have no power or authority ^th|n the territory 4\ 

tibe Water-Bailie, which ejcteada alo^g the laargui' i 

severd counties, and e^en beyond tbe liiaits of fhe/i/ 

ria^iistion of the Cinnnt Goitft of Olnsgow. 

For the complainer, it was pleaded — 
Th6 jmjfldictien of the Wat)HvBaiUe Ccmri ia «i|&« 
ferred on the Bujrgh of Glasgow, and ia a^eraiied 
through the inl^erventj^B of ^a baitie etocdsed ky 4he 
burgh at its stated winii»l .elect^n ^f magiatiiatea ned 
copneil. llie powers io£ the Wntor-BaiUe ^re not 4«h 
tinct from, aad i3dep«»dent of^ t^e bur|^« Tl^ayde* 
pend on the existenee of the bwgh^ afiA wmM be Js- 
stantly extinguished by disfraiichiseiBHit.' The sti^ 
tute gives the ri^t of afipeal t»4he Cipeuit Court -ft<«p 
the sentences * of the cm^ pf any royal hw^;* 
and it is contrary to the plain m^afftng <^ tibe mR^s 
to maintain, that a court if^ieb» by debgytpd 40^19* 
rity, exercises a jurisdicti^B vested ia a buijgl^, {# Hot 
a court of that b«irgh» Th« use of ihe word * 'emat$' 
shews that the kgf slati«re f^99te«iplaM other oMite 
in royal burghs, who^e |)idgiiifQt8 might be appealsd, 
besides the Bailie4]k)urt The pursuer^s intarpretalioo 
would exclude the Dean of QmH Coiyt; and yet ^^ 
sentences of that coiiirt;, whidi ja not Ims distiast (twit 
and independent of, the QaitierCiWrt^ than the jadipa* 
tiire in question, {vide Ad&aispA V* Mastertoo, 9^ 
July 1691* Ihme, Mer. 74ft4») m.a^ tertajidy ^ 
reviewed by the Circtiit C^urt, ip viiHw^ of its H^" 
tory powers. 



ITaS. COURT OF HBSBiaN. m 

ItBaot a:groood f^ hoMigg the Wato^ftflie Compt^^j;^ 
JM( tt be a court cf the burgh* tlmt it exercises a jn-chApiMB » 
MUdioA tiefond the reyalty or proper burghal terri-^^* "**^" * 
loqr. JBeeideSy ii taoay be fairljr said, in j^farence tojumdieHmk 
AisfMslioQ, that thetaai^ does eztaad over thef^^^ 
«Me t^rUory whidi is^M subject of the jvtsdiction^ 
at the Water-JSailie. Nor can it affec^ the ^fueetien 
Ihst this judge exerdaes an admiralty juriediction. 
.flit powers are sot confined to maiitiaie eauses; and 
the present 3» not a question of that nature, and^might 
have been competently tried in the sfaierifrs-eourt. 
fia^ sa^iposing this eourfe a proper .Admiralty Conrt» 
««l Ae fueatieft truly a maritiuie one, ^iU it isenoDugh 
that tiK |firi8dictk>n is veated in :the burgh, to ^ring 
^CDuct -mtbin ihe atatntory deacciptkni. of a murt 
afanyalhisigh. 

Lord Juitice-Cleri.t'^hm. ia a question of con- 
-ftgattioafd tJieact oC Farliameut ; and the party must 
iriMarhiaaHPml to.be predady wilhinthefteriDs of the 
Mt : Hie vrocd * cQuffta»! in the plural, will not aolve 
^i^rtiou; JG91: it plUinly fate .reteveati^ not only to 
J8pal-lSU|^ hut also to^bbx^ o£ jra^dity and ba^ 
AMqt liuet^imBda. inquky at one of the derfcs of 
Justicuury (Mr Anderson) as to the piwitice in this 
aKtter I ^Hljt |[Ot.no Infwiuiti^n with regard to the 
JkmM GuiMl Court. . Two inatabces. were^ however, 
mmkm^iU of .Judgtneats.oC the Water-JBailie having 
hmbfmgbt hafora.the jQrart of Justiciary; but in 
ttfsaflOOfcSMti^wda taken to the ceoqietency of the 



Thejusiadiotlpuof the WMex^BaiUe^ although he 
bdda hia courts in Glasgow, is over an eictensife teiv 
ritot|r» and orcr persons not ^ubje(*t to the jurisdiction 
of the Magistrates of Glasgow* It is impossible w( 



4« SXEOtUOm or "THS No.* 

»i Not. 18M. eiii hold, in tmoM of the shntute^ a oourt having thiB 
Giwpnaa th auomaloiM jorisdiedoii to be a court of a royal btirgii. 
Don ai4ioa> Lord Glettlee.-^l entirely concur in the opinion of 
jwitdkiimt. your Lordship, that the appeal is incompetent* I also 
iTc^is^mt ^W^^ ^° thinking that, for therea8<Hi you have assign- 
^^ ed, no aif^iunent can be raised on the word ^ cottrts* 

being in the plural number. But, even supposing it 
intended that the word diould have a particular ap- 
plication to the asqmesnon * any royal burgh/ and that 
thus the Dean of Guild Court might be included, still 
it must be hdd to^mean courts within the tefrltory ? of 
a royal burgh. The present is simply the case oi the 
Magistrates of Qls^gaw haviiq^ apowir iff naming 
the judge oyer the river asid frith of Clyd^ witlKmt 
rq;ard to whetfater that tenitcMy be wMiin the burgh 
or not. By no interpretation of the statute can we 
go farther than to apply it to courts whose jurisdictiefi 
is confined to the prop^ territoxy of the Imi^b* --, 

I^ord PitmUhf.^^ am of the same opiolop. I can- 
not think that the l^slature could have in ^km- a 
court so peculiarly ctreumstaaced as this. If itJiad 
been intended to include such a coort» it wauMibiKve 
been expressly mentioned in the act, and not brought 
under a provision appUadUe to the oomnMni cmit^afi 
foyal burghs. . ; .i» 

Lord AUowmf.^^1 concur with all your LoidsUSpil 
that, the iqppeal is incompetent - Adndralty jaraodj^' 
tion, which only the Water-Bailie Cojurt has njgl^^o 
exercise, is not mentioaed in the statute; and if fCfK 
pears impossible that a court of Ais descr^tkui ei^ 
be held to be a burgh court; for it makes na^dfifii^' 
ehce that the power of appointing the ju^ isiCM*-' 
fenred on the burgh. , .. 

2^ Cosrj found the appeal incompetent, a«Mi/<W/ 
penses due to the defender* ' - ^ ^v 



In^ 0(»tLTOr&l^m&H.i 4t 



MMtK Tko. Craiatui, W-, S. Agent. For tbs B*. 
. mdent. Dean of Fac. (Mmcreiff) Sdl,.Gen. (Hope). 
tMKjpM MoA Mactbwatt,Afieni». ^. Clerk. 

s, - 



flRST divisiok: 

lit. IX. "' • «5 Novemherl%i», 

Pfin»-8©0TT A»B JOHN GITPOllD 

WmJuER kNtf KERR. 

iMmiA)ics..^FROOPv->7V ««lry, m a ^p^tregU- 

&r, «f4kemaHe9 qfpartia tu owneri, does not, pep 

' K,)M«ri^i«ie r^ ^property t6 he ih them, wheu 

• mtitftmg §6h reebter Kmfe^ a pdicy of insurance^ 
•"^rii nftoi ' Ae fNukmriterit Oeky that they are the 

"f^^miimnt^'Mtveikkhuvtabl^ interest: 

^NSfr<J«Me iMi; Jbeeph Mariticha, residing in GreeJ. 
*>tk, wrote the following order of insurance to the de- 
fatEM^'MiBer And Kerr : * Insure LiOOO on Iiull and 
^ii<MW» cT €Ke-brigR. 6f Dalhoiisie, Peter Scott 
*= tttHM, at Utiftcta Cfyde to Quebec (with leave to 
*tiB «t»poirt'l& tfce Hl^Iands to take in passengers) 
^''•fcifeftelertti^ftente to Dondalk. andfrom Dun- 

• ttttWQnenwk, prendum per cent, valued 

'Tie defenders accordingly effected an insurance ; and 
••>*8iel bfii^lig-lDeen losti an action was brought be- 
*w the Admiralty Court against the defenders by Scott 
•"i GOhei, whose names appeared as the registered 



M I]ffiCS6I0e» OF THB JK<^« 

M Nov. 182& owiieBS <tf ifae vessd. A fttriety of pleas iraire-jdbiAA: 

BcotTftTft ^^ defence; but the only one n^cetSMry no\r to \h 

MiUer, &C. noticed wes this — ^that the pursuers, at the date of the 

juiurance. ^^^» ^^ ^^ insurable interest, as not being trulj 

^'^Z owners of the vessel, and that the sole owner was Mr 

Manticha, to whom the pursuers had merely lent tkeir 

names, that he might be able to evade the navigation 

laws of this country, he himself being an alien, and, 

therefore, incapable of hpldiiqi^ a l^al title to any 

British vessel. 

The question thus oame to be, whether tfat erUx^ia 
the r^istry of the namea of the pursuers was» per se^ 
conclipsive evidaiHie of the'rig^t of pnoper^ in the 
vessel being vested in them. The Judge-Admiral- fii|B« 
tained the title of the pursueis, butawoilsied the de- 
fenders on the merits. Mutual actions of reduction 
trere brought and 4:onjoiaed. Upon the ppmt pf tiUfti ^ 

The pursuers /ifeodEac^^Iliat the regular ai)d 4MU- 
jdete registered title ifi a pewNGi capa^le»of holdijiHItfueh 
a title, and adopting aad stafidingupon it| isn-^e 
to ship property which cannot rdeyant^ be di^^t- 
ed, but must be held as sufficient legal evidence of 
the right of property; Em parte YaUop^ 15 Ke^egi, 
60, 69, and 71 ; 1 Maddock^SQ\ Calder.and otjwrs 
47. Miller and others, IStii Nov. 1884, JSk andj^; 
Tod and others e» Boag and oth^r^, dth MajBtk 
1885, S. and JD. ; Speed 9^ Leduwece, 13 Vif^ey^ 
588 ; Maester e. GiUespie, 11 r#^^ 621 ; Si Mad^ 
dock, 110 ; Lumsden i^ Allan and Madie, 16th I^ 
1838; Porter's Trustees u Stout and m<u»d«tsiy^ 
11th Dec. 1816. Where, indeed, thewgistei:^ axfier 
disavowed the registry, and rejected the pro|ferty, 
proof must be given that he a,uthoriMd-or edi^frted $)ie 
registry, otherwise m man might he aul]ije<^ed t9 rWP*- 
ous responsibility, on the lu^umpUon of v^J^tyflm^ 



m.^ oasmTovummWi 



ffltiercUbKiiii^ on the r^tqr mg the v^jrpersons i«f sc^Im^ 
Bte»fiaaMp k j« made, the getteea of the eaKccytlop ^^^ ^> ^ ^ 
JJHppmrs ; «id ihe r^kftry is condusiTe ^.videiice of ins^^^ 
ike^cf fnpertr; Ti^kter t^. Walpole, 14 EuH.^'^' 
miJUtU^v^ ftSi, Lwi Timterdmfe Spefch. 

Flttded &r *e AcfendetB-^That the. aU^gaAion 
flHiA^hf then, tkaitlimf^M^^^^^^^ ^^^'P^* 
iMBiraB a mct^ iBQUii9i?e attemjpf; to oov^ the pro* 
poif af an ralMU is a^iamgatiw wbic^ the court . 
k not ooi^ foXblUiJ^ot be«ii(di4ia.UateQ to ; because-r 

1. In every aetion on a^ffj^iiryi^itm^rapfidp it is in- 
Mptaflttle^ «Mn» ^ . p wW m p yi^ P lyrtevtEt is- disputed, 
Aat die' osialiMe tff m^hm Mf^^f^. ox^t be iMwredi 
ad Hia oaiia pnl^amli, in j&f^^emeiU^ wi*b the pur* 

S. ^Bie ahip^ .iwigi|t9r» ^ fpr frcm ^qg conchi# 
ikm eiMknte ^f -^^ 'pmsiiieBS* ^aoEtn'ssta^ <mneT8, 

Hfu^ jdttmmiik «vi|)imica ^gainatrlheveraQiif 
I sign H, it eonld not be evidence in, their favoi|r, 
UMMinti]^ to nothing mojre than their own declara* 

TUOer, 14^ East. 2St6i Flm^ir. Young/SOn^&e//, 
SAOt Abbott, 8&^43 ; Pirrie v. Anderson, 4 TaWiton, 
<B; 1 Holt, 321 ; 1 PAi&>#, 387, and vol, ii. p. 48, 

8. It is eentrary to the whole pdicy of the re-* 
girtrf ads that a ship's register should be received 
• prorfof ownerdiip; Bell v. Amley, 16 JEast. 141 ; 
UFevy, 66. Although necessary to complete a title, 
itknotevidmce of jwoperty; Holt, 2d edit* p. 176. 

4. It is essential to theeuds of justice, as between 
futf and par^t that, in cases like the present, the 
QWiKidiip of eiVoy one truly interested in that cba« 
meter shoald distinctly appear on the record. 



44 DBCIfllQNS OF TKE Nb..tt 

i »Ninr.im 21^ Court, on advising cases upon this point, wera 
Scott, A4S. % unanimously of opinion that the entry in the register, 
^^" "^'^^ of the names of parties, as owaers, was not, per se^ 
in9umne$. Sufficient evidence of the right of owner8hip.*-*-*The 
^^* JLard Prendent observed, that the result of die cmes 

appeared to be, that a party who made a clainoi as the 
owner of a vessel, but whose name did not appear as 
such in the register, was not entitled to establish this 
fact by other evidence; but, on the other haad> -Huit 
the mere entry of the name in the raster as owner» 
was txii^per §e, conclusive; butwbifire theJhet vm 
disputed, it was necessary to prove, it 4jiumh* . * 
The other judges ccmcurred. , . \ 

Their LcNfdfthips, therrfoK, * Find^ tluit the niyis* - 
^ try of the vessdi in questicm in the naineof tfae piuw 
^ suers, Scott and Oifford, is not evidewe^ jmt ^ je, 
« that the said vessel is truly their property^ and that' 
^ it is ineumbent dn t&e saidpureMers to pro^e-tfa? 
^ tact by other evidence : Therefore^ recal the. Intav 
' locutors of the Judge*Admiral,<so Jkr as they sus« 
^ tain the title of the said pursuers ; «nd remtotoihe 
^ Jury Court,' &c, : . . r 



Lord NewUm, Oidinary. Act Skl^G^n. (Mape),Sb$^^ 
Alew. RoberUouj^ W. S. Amt Alt. J^reu^ IvariL* 

Campbell ftnd MacdomU, W« S. Agenta* i 



a 



7 



/—If 



Nbiia COURT OP SESSION^ «l 

PIBST JDIFISION. 

JAMES JOHNSTON 
WBRT OF SCOTLAND INSURANCE CO. 

iff AefiiXmg ^ an ai^aimmg gMe^ when imAeact 
^^eiiig td^ dawn iff ^rthr^ ike Bern ^ Guild, 
hcmueqMmet^ii^ty itkadauitainedb^Jtreima 

fti^fiifraer'kfld iiumred with the de fe n ders ' his 
^taMBMit, mid room commmiicatiBg/ in 6triciieii*8 
^ dsee, Irkh tke stock and uteneSs therein/ against 
tan er damage- by fite«. BjrthepoUcf^ the defenders 
beeaine boond, to the extent insured, ^ to pay all loss 
' or damage which the insured shall suffer by fire on 
the property above desci4bed/ 

On SSd February 1825, a fire broke out in a house 
OD the opposite side of the close from the insured pre* 
aiiiesy^rhich was in consequence destroyed; but a gable 
of that house remained standing after the fire, but in 
iodi a dangermis state that the Dean of Guild and his 
Cboidl ordered it to be taken down. In attempting to 
4o 80 on the 85th February, two days after the fire had 
ken extnignished, the gdl>le fdl upon and destroyed 
tepersuer^s house, and part of the stock and ute^wls 
*tt«n. 

The punoer raised an action upon the policy of 
to recover his- loss from the defenders. * 



y 



40 DECISIONS OF THET ^ Nol lOt 

^\^^\^ The defence was : • There te no ground in law fbr 
Johnston v. * Subjecting the defenders in the damage done to the 
u^dintti^^' pursuer's premises by thd falUiig or palling down rf 
^^ * the gable, the same not coming under the d^iomins- 

' tiba of loss or damage hy fire, within Gie.mem/bg 
^ of the policy, and which is the only risic insured 

* against.' 
A remit having been made to the Jury Court to 

ascert^a. the£EUsts, the Jurf retuned J^'ibDUin^ng 
special verdict : * That in respect of the matters pro- 

* ven be£o>e them, they^ find tfai^ a'fi^ hrodDe out iit 
^ Slanck^'s ck>s< during the night of TaesdagrtkectSd 

* Fel^Ufliry ia05yand was eactingttished on Wednes* 
' day the 98d, dud that several bouses in said Seri^* 
^ en's cl09e were destroyed by said fire, and, in -par- 

* ticular, a house oA the opposite side .of the dose to 
' the insured premises of the pursuer; and that a gar 

* ble of the said house remained standings aftper* tilt 
^ fine, but so mneh injured by tbe fire, and-in audir A 
' state, Uuit the Dean of Guild and faia Coaneil mppnf- 
^ fa^a^ed' imminent danger to the lives of the lieges kff 

* tho&tUng of the said gable, and, therefore, in th« 
^ sound jand proper exercise of thek authority, graatf- 

* ed warrant for taking down the gable; which ope^ 
' ration was attempted on Friday afternoon^ the £ftfa 

* of the same month, uaderthe diroctien of persons of 
^ skillappoittted by thedeanofgnild^.and.wiio aoied 
' to the bestof tiheir judgment ; andthat^ in thecbarte 
^ of their said opmriions^ part of ftiiesaidgaUefeH^ia 
^* con8equeneeofthei]](}Uiyithaden8tained'l7 Aafil^ 

* and struck against the insured premii^es of tiie poi^ 

* siier,to which the fire had not communicated^ wiiersby 
'^ eaid'parsner suffcoed. low and damage : Bui wktf- 

* ther, upon the whole matter aforesaid, the said/pni^ 
> suerisentHled tohisjKdim^ fbejarocaaforeseidiJM^ 
^ altogether ignorant^ and therdPone pray theadvice 



NoLia. CaVRT OF SS»K>N; 47 

* ^CtkCoart: and if , iqxm the whole matter afbre-^^^^^y 

* wilt dmU Aeem to the Court tibiat the said piirsatr:rohii0ton «. 
'ji«iMeAt# hk action, thea the jwrora •foi^^widi!!^;;^^ 
' iiiid ft wnUet for the pursuer, asdaaseds the da-Co- 

* mtign at I<.889u 29* 5d. tef;isther ^with legal iateeeft- 
' fkemiftom thi$ Sfilh day of Mwtb 1895 iftitii paid, 

* n libdled ; Imt if^ upon the whole matter albmeaid, 

* kflbaB aeem to tibe said Court that the said pttrsuer 

* is not entittod to his action aforeaaid, then the jnrerv 

* ifaesaid, mffm fheir oath afdresaidt find a yerdict 
' ftrjhe aaad 'defenders/ • 

nepraeesa was then retnmed to the^Cbttftof Ses- 
M^ fi> dteide tine pomt of law reserved in the above 
wntteL The . qiuBtwa was aigued in cases before the 
LQi4Qrdinar3r« "wbo took the cawe to report by air 
lalcriMiltor, tier which his lordship added the fbUow- 
mg ]iote>— * The qufsfeiMt involved in the present 
' praeev betag-ow of generoi imporUnce, the Lord 
' OittMrjr has deemed it a proper case to tsjke to re- 

* patki pttsiuniBg» too, that whatever his judgment 
' M|^ be, the intentitii of the parties was to hav« 
' the point at issue settled, by bringing the matter 
' andeff consideration of the courts of review. At the 

time, the Lord Ordinary i^ofopinion titat'tfae 
i4 not attended with maeh difficulty. He is 
' 9HCa eleaii that,. in all questions of d>ia kind^ fire 
' Mat he. the;proxi]nate cause of the injury receivedw 

* ]kt(he f» nttfftiram oE ttere beihg-fanjr case iu wbix^h 
' M haa hoett.held tlMt,dn order: to: eatiJOe the asiuzvd 

* Uifhcsr relief H^hould. be prbvedto havB been the 
' adkaal ftiatnvienlt by .wiifch. the) injury? austaihed 
' asailillifted. TlMie,J£ fundtuse ia destroyed, not 
' hj^Ao.fire itwlff/.bUt by.iihe* water thrown in to 
' asliQga]shti^».oit if Ainisror shoidd be braken by a 

r:hNiaaKd:fi«H|i(«hd:fautlihig bytheftun^ such 



48 DECISIONS OF^HE Nd. VOf. 

** ^<^' ^ ' * losses, the Lord Ordinary has understood, are uni- 
johnston v. ' ▼ersallf admitted to be covered by a policy of iii« 
tad inm^e ' ®*"^^<^ against fire. Neither has it ever been un- 
Co. < derstood that the fire doing the injurf tAtould ac- 

' tnally have arisen or been in the ^eniisies injvred ; 

* for if, firom the reaction of the conflagration ina 
1 narrow street, damage has been oteasioned to the^ 
^ tenement^ fee. opposite to those on fii^, it is believ«d^ 
^ it never was disputed that the proprietors of thooe^ 

* tenements, if insured, were entitled to recover. Nbw,' 

* in this case, it is settled in point of fact, tfistt A^ 
^ wall whidi created the dami^, * fell in eonsequeUce 
^ of the injury it had sustained by the fire ;' and; 

* therefore, idtiiongh the waU was the instrument bf 
^ which the damage was occainoned, the fire was tiie 

* proximate cause of that injury. Besides, all poKdea 
^ of insurance must be interpreted according to the 
^ common understanding of the ^eoantry ; and tfa^ 
^ Lord Ordiikary is satisfied that it has been univer-^ 
' sally understood, that damage done in the maanef 
' of that in question is covered by a policy ot inau* 
^ ranee of this description.' 

JPKMifarf for the pursuer-^ 

It is ascertained by the verdict, that the kws hap^ 
pened on the insured premises, and that it originated 
in the £Edling of the rninous gaUe, * in consequence of 
' the injury it had sustained by the fire;' and thtf 
question is, whether tiiis be a loss bccteioned by fire 
within the true meaning of the poUcy ? ' ^ 

By the verdict of the Jury, which must be hdd -ni 
probdtio probata of the fact, the fire was the solA 
cause 6t the falling of the gaUe. It is not said to 
have happened from the manner in which the piAt 
was attempted to be taken down, nor even partly in 
consequence of these operations' and partly in c&ass^ 



Hq. Hk COURT OF SESSION. 49 

9Mo»«ft|ieliw^bot the whole damage is asoei4iutt-^,^^|]^^ 
^ijrtke vardict of Itie Jury to have originated in Johnston «^ 

i^^m, , . West of Scot- 

Thig ftct Veisig ilaeertainddyllie gable itsdf would^^^ 

ia^^iettioo tmder a policy of iastimiee of the tene* inmrtme^ 
Bflt,4tf whidi it formed a pa]% have been held to 
keie lien ie9tJ»y3ed by fire# although it did not fall 
(Rafter th# five waa. extiiiguished. It must follov^ 
ttiVifthia.g^ble^bf its £a& in cooaequence of fii^, 
4oBUdeetapey goeds wluch were, insured, this would 
aifpha^feeeby^jfiret. according to the true and bona 
AfPMase of the policy, ^j^nition of ^e aifticles da* 
nugedia.not BeGGSsarytQ constitute the loss under 
die policy, if soch losa can be attributed to fire ; in* 
dnd^ the greater jiart <xf losses by fire do not arise 
(wa.tht actual ignition of the articles insured^ but 
tftpx the injury which th^ sustain in removing, or 
kfitbe^fall ,4ii parts of Ihe t^iement during the fire. 
Ilieiasuraiic^ i^ againi^t ioas or damage by fire, in 
vhatev^er way the fire may operate. 
:1am or 4wnage .by fin indudes every species of 
injury which the fire directly occasions, whether by 
igution or atherwise. If the injury was occasioned 
hj fix^ it is of no consequence how »the fire operated ; 
i(. ja a damage by fire,: which the pursuers are bound 
Unfair. If the gable in question had fallen before 
4i&/ficq..wa8 extinguished, and injured the pursuer's 
tiauaiept^.allJiongh by the ^1 it had prevented the 
fai 4;Mi,e9[teBdingf this, would have been as much 
a km by fire as if the premises had actually been 



bamincfuagainst fire covers all losses sustained in 
flla pnomseai insured* by means of fire, within the 
tiaa Umit^ iu the {Kdicy ; 2 Pari, 653, 7th edit. 
Gpsfls.of mninB insasrance famish illustrations of 
%^^vi^s fluyyotained by the pursuer ; 2 MoMhiM 
at Insurance, 487. The loss of a ship by another 

D 



AMtwnnMu 



SO DECISIONS OF THE No, ld{ 

I 
a< rNqv.iw8 > veggel, through gross negligence, running foul of hieil 
johnBtonT ^^ ^^^^ ^^^ to be a loss by perils of the 8ea|| 
J^^j°^^^ Smith V. Scott, 4 Taunton, 126. The same prind 
Co. pie is acknowledged in other decisions ; Hodgson fii 

Malcolm, 2 Bosanquet and Puller, N. R. 336 ; La^« 
rence v. Aberdeen, 5 Barnwell and AldersoH^lOT* 

Insurance is a bona fide contract, to be interpreted 
liberally and fairly ; and when the loss has happened 
by any of the perils insured against, it is of no ioM 
portance in what circumstances this has occur^. 
The question in the present case is, whether fire oc» 
easioned the injury suffered by the pursuer ; and this 
question is settled by the verdict of the jury. 

Pleaded for the defenders — 
The rule in the construction of policies of insurance 
is to look to the immediate cause of the loss. Orma 
primma, wm remota, spectetur. If the loss was not im- 
mediately caused by fire, the insurers will ndt be lia- 
ble, although fire may have been the remote cause. 
If a claim were to lie whenever the injury could be 
traced to fire as the cause, though remote, there would 
be no limit to the degree of remoteness. The only dis- 
tinction that can be drawn is between the proximate 
bause and the remote cause. 

Fire was not the proximate cause of the injury lA 
the present case. There never was any fire or burnhig 
in the premises ; and the fire in the neighbouring te- 
nement was extinguished before this injury happened. 
Nothing insured under this policy had been, or couM 
be, burned by that fire ; and, for two days aftar the 
fire was extinguished, there existed no claim, or 
ground of claim, against the .defenders. Whatevtf 
might happen to the premises after that, m^ht he 
traced to the fire as the remote cause, but could not 
be referable to the fire as the proximate cause, for'tbe 



NoL 10. COURT OF SESSION. 51 

firekad been completely extinguished. The proxi-^*^^****^ 
realise was the falling of the gable, which was j^|^[J^^ 
:to its weakness at the time, and the operations ]*^?***^^'- 
OS it under the orders of the Dean of Guild. Co. 

in marine insurance, the distinction between re- 
mote and proximate causes has long b^en observed ; 
od the proximate cause alone has be^a regarded in 
coBBidering the liability of the underwriters ; Powell 
«. Gudgeon in 1816, 5 Maide and Sfhyn, 431 ; 
where a vessel, being disabled at sea, waa obliged to 
pot into port to repair, and the master Ii9Tiqg sold 
port of the goods to defray the expense of th^ repajrs, 
Ae imderwriters were not found liable fpr the loss. 
In that case the distinction between proximate and 
innote causes is laid down by Lord Chief Justice El- 
Icnborough, and acquiesced in by Justice Bayley and 
Jwtioe Abbot. The authority of that judgment was 
iMognised in the similar case of ISarquey p. Hobson^ 
1B8T, 4 Bittghamj 1S5. 

In policies of insurance against fire, t]^e same rule 
applies, but the nature of the rule up^ertaken is more 
Ihmted and umn^ strictly defined ; Marshali an In* 
manee^ 785 and 790, 3d edit. 

The policy in question is not ^ainsjt #11 loss or da- 

msge which may accrue to the injured premises, du 

mtij or indirectly, by or through fire ; but it is ex« 

pnasly a policy for insurance against lofi9 er damage 

hf fire. Now, there has been po loss or damage by 

iive on the premises ; there has beien 90 fire on the 

pramses, and no injury to them during a fire any where 

dae ; there has, therefore, been no damage within the 

foliejr. The attempt of the pursuer is xiot only to re-* 

fer the loss to a remote cause, but to introduce into the 

contract various new elements of risk not contemplate 

fd bjr the policy, as the height and strength of the walls 

rftCTPments detached from jthe insured premises, and 



52 DECISIONS OP THE No. 10. 

55N^^8. ^ji^ y|gj^ f,,^^ ^^ degree of skfll of those employed to 
Johnston v. take such walls down. If there had been no insurance^ 
UmTiM^r*' th^* risk would have been on the proprietor; and it 
ance Co. must Still remain with him, unless he can clearly shew 
j^uuranoe. t^^* *^^® iusurcrs havc undertaken it, as well as the 

risk of fire on the premises, which is the only risk ex^ 

pressed in the policy. 

The Court repelled the defences, and decerned in 
terms of the libel. 

Lord President — If the gable had fallen during the 
fire, there can be no doubt the defenders would hare 
been liable under this policy of insurance. It can malce 
no difference that it stood for a day or two, and wa9 
afterwards ordered by the proper authorities to be ta- 
ken down. The damage here was occasioned directly 
by the fire. It is not necessary that the fire actually 
touch the building injured ; it is sufiicient if it is the 
direct cause of the injury. Suppose a house, which 
the fire had not reached, pulled down to prevent the 
fire extending, I think, in that case, the proprietor 
would be entitled to recover from the insurers. 

Lord Craigie. — »There is a part of the verdict 
which decides upon the conduct of the persons em- 
ployed by the Dean of Guild, although they were no 
parties to the action. Upon this finding, it appears 
to me that no stress can be laid. Unless it had been 
shewn that the gable could not be taken down with* 
out injury to the house ini^ured, it would be hard to 
throw the loss upon the insurers. iTbe fire in this case 
does hot appear to me to have been the proximate 
cause of the injury. If the gable had been thrown 
down by lightning at the distance of some weeks or 
months after the fire, although it might be thought 
that, unless from the fire, it would not have fallen* I 
do not think that the insurers would have been liable. 



»«lio. court op session. S$r 

Lord Giaies.—We must take the verdict of the jury 2* Noy. 1828. 

tspniatio probata of the fact. The verdict expressly jo^ngton v. 

Ms^ that the damage was occasioned by the inj^y^^*iS^^°** 
which the gable had received from the fire. It makes ^nce Co. 
BO differaice that a short interval elapsed between the j^^^i^^^ 
fire and the damage. 

LordMeadowhank^OtdiskSsj. AcX. More^ Jeffrey. James 
Jobmon^ Agent. Alt. Sol^Gen. r Hope J 1). M'NeUL 
Jakn Elder J W. S. Agent. H. Clerk. 

T. 



FIRST DIVISION. 

No. XI. 26 November 1828. 

DAVID STEWART GALBRAITH 

against 

MALCOLM MCNEIL. 

Proof. — Oath of Party. — A defender, to whose 
doih resting owing had been referred^ having de- 
ferred this pmnt to the oath of the pursuer ^ and hav- 
ing died before the oath was emitted, or the record 
dosed— it wasjbund not competent for his represent 
Mice, who had sisted himself as d^ender, to retract 
^« deference. 

Ik an action at the instance of the pursuer against 
Hector M*Nell of Gallochilljr (predecessor of the. 
lender) for payment of an account of certain articles 
8D^ to have been furnished hy him to Mr M*Neil, 
tbe triennial prescription was pleaded in'defence ; and 
&e pursuer having referred resting owing to the oath 



. I 



H* DECISIONS OF THE NFo. 11. 

26 Nor, 1828. qJ tjj^ defender, the latter deferred this point to the 
Giabi^tTl ^^*^ ^f *^^ pursuer. In these circumstances, before 
M*NeiL the oath was emitted, or the record closed, Mr McNeil 
Proqf, died, and the present defender, who was sisted as a 

Oath 0/ Parly, j^^^y^ pleaded— That he was not bound by law to 
abide by, or follow out any deference to the oath of the 
pursuer, made or proposed on the part of the deceased, 
in the course of preparing the cause, before the record 
M'as closed, and on which nothing followed, upon the 
same principle that it was competent to a party to 
retract a reference to oath at any time before the oath 
was emitted. 

It was answered — ^That it was not competent for 
the defender to i^tract the deference which had been 
made by his predecessor to the oath of the pursuer : 
Isff Because the principle, upon which a party who 
had made a reference to oath was allowed to retract 
it, did not apply to the case of a defender deferring 
resting owing to the pursuer's oath ; Chalmers v. Jack- 
son, 18th Feb. 1813. 

And, 2dly, Because the circumstances of the parties 
had now changed, and the redress which would have 
been competent to the pursuer by the oath of the origi- 
nal debtor being excluded by his death, it would be 
unjust, when this evidence was gone, to allow the de- 
fender to retract the deference, which was now the 
only competent or possible mode of proving the sub- 
sistence of the debt. 

The Lord Ordinary found • that the defender was 
* not bound by the deference proponed for the late 
^ Hector M*Neil, the original defender,' &c. 

When the case came to be advised upon a re- 
claiming note for the pursuer, the Court, at first, 
had some difficulty ; but afterwards their Lordships 



Ka 11. COURT OF SESSION. 55 

came to be unanimously of opinion, that it was not^ ^^^'^ ^' 
orapetent for the defender to retract the deference oaibraithv. 
vkich had been made by his predecessor to the oath M*NeiL 
of tiie pmsuer.^ — ^It was observed hy Lard Craigie^proqf. 
that, upon the principle of the civil law, it was in the ^^^ ^^ ^^^ 
diseretioQ of the Court to decide how far a reference or 
a deferenee to the oath of a party could be withdrawn ; 
aad as both proceedings went upon the ground of a 
jodicial agreement, it was not competent to retract 
other without suflkient cause being shewn ; and in the 
present case such cause had not been shown. On the 
cimtrary, strong reasons sppeared why the deference, 
eboald not be allowed to be recalled. On the death of 
die or^final defender, his heir (who might know nothing 
of the circumstances of the debt) appeared willing to 
svear that it was not due ; but this was not a situation 
ia irtiich the parties could, consistently with justice, be 
allowed to stand. The pursuer had lost the means of 
pnmng the subsistence of the debt by the oath of the. 
(oigiiial debtor ; and the defender (who might know 
nothing of it) refused to abide by the only means of 
poTing it whidi now existed. 

Lord CriOies oheerved — ^That the true reason for 
letractuig the deference appeared to be, that in con- 
seqfDence of the death of the original defender ther^ 
coald now be no reference to his oath, and that this 
oQg^t not be permitted. 

In these opinions the Jjord Prendent and Lord 
^dgray ultimately concurred. 

Their Lordships, therefore, ' altered the interlocu« 
' tor of die L<Mrd Ordinary ; and remitted to his Lord-t 
* ihip to proceed in the cause.' 

UrdUeadowbank^ Ordinaiy. Act. Jameson^ A, Wood. 

Mrew Gray, W. S. Agent Alt. 1>. M^NM. Lock^ 
krt^Swttfh W. S. Agcnti. H. Clork. 

C. 



56 DECISIONS OP THE Nft, lA 



FIRST DIVISION. 

No. XXL ^Nwember\sa». 

J. A, CHEYNE AND L, .MACKEBSY 

agoing 

WALKER, 

BANKBUPT.^»-£Eau£8TBATioN.«— Stat, 54 G£0« IIIi^ 
c. 1«7-— 4STAT. 7 Geo. IV- c. 67.— Peoof, — !• It 
u competent, under the farmer statute, far a creditor^ 
to appear and appose a petition f»r sequestration^ 

9. The i/fOerest u^ick a cauHo/nerfar the debtar maff- 
have to ^ect his security in reU^ ie sm^ident to 
entitle him to appear as a creditor. 

8. Under the latter statute, it is competent for those 
who have been appointed cashiers ^ a bank* f(^ 
the purpose of winding up the camcems qf the com^ 
pony, to sue and be sued in their qffidal character. 

4, A sentence ^Jugitation by the Court qf Justiciary 
is Mfficient prima facie evidence qf a debtor beu^ 
furth of the hingdom^ to constitute public banlh 
ruptcy. 

ESENEZEE ANDEESdK had been one of the cashiers (tf 
the Fife Banking Company ; and Mr Walker of Kin^. 
gask became one of the cautioBers for him in that capa^ 
city. The affairs of the company having become emha^* 
xassed, they, upon receiving advances from the British 
Linen Company and the National Bank, granted a trust- 
deed for the securily of these establishments in 1825; 
This deed, however, was not acted v^goa, iq cobs^ 
quence of other arrangements, which were afterwards 



Ho. U. GOURT OF SESSION. 57 



iBto^for the security of the banks. At ^^^^^^^ 
of the proprietors of the compaoy in 1826,cheyne,ftc«, 
tkt 9gmti for these banks being present, James Auch- ^^^ ^e^' 
iafedc Qieyiie and Lindsay Mackersy were appointed Bankrupt 

of the Fife Bank, for the purpose of winding ^^Tm^ 



Mp the affidcs of the oompany. jf^^^ ^^ 

In the course of the investigations which took place, /r. o. 67, 
a bige deficiency was discovered against Anderson ; 
and, on the ground of c«tain alleged acts of fraud 
ni cmbesilonent^ he was indicted to stand trial at 
Perth ; bat not having appeared, sentence of outlawry 
wspsomMmccd againsthim. 

TiMieafter, Chejme and Mackersy presented a pe* 
titiOBfor sequestration of Anderson's estate, which 
MM opposed by Widker (his cautioner) who had o\h> 
tnied a security, which wonld have been affected by 
tie seqnestrakioQ. 

The case having come before Lord Gillies, as Ordit 
Bsy upon Hie Kils^ his Lordsh^ wdered eaafis^ 

nejSrsI question wHs^ whether Mr Walk^ was 

cslitied to appear and oppose the sequestration being 

smided* It was objected, 1^4 That even supposing 

Urn a proper creditor, with a sufficient interest in tha 

qisestion, he had no title to appear at this stage of 

tbe proceedings, and oppose the sequestration. The 

fltatote had provided two methods, in which a seques* 

fantioD, if improper, might be opposed. The one pre^ 

HiUpe, provided by the 54 Qeo. III. c 137, sect. 15, 

vlmel^ the debtor, and he only, was entitled to ap-i. 

inr and ahew cause why his estate should not be se-^. 

^Minted; and the other remedial, by the 22d sec^: 

tiOD^ whereby the debtor, or any creditor having an in<t. 

taest, might have the sequestration recalled, if wrongf*. 

Uf awarded ;. and it was . only in thi9 way that a 

cttditar oouM have redress. The terms of the statute. 



58 DECISIONB OF THE No. IS; 

a 6K<^iM 8. ^^^ express, and they afforded no other remedy. Butt 
Chf^Yvef ie. 9.^^9 the interest arising to Mr Walloer from lua 
WaUcer^ contingwEit claim of relief as cautioner for Andersoii» 
Bankrupt WB8 Tkot Sufficient to entitle him to object to the 8e« 
sSTbAo!^ questration. To afford a sufficient interest, a direct 
5tofe 7 gmL ^^^™ ^^ ^^^^ ^^ necessary. He could have no pjDBr 
IV. 0.91. ference oyer the other creditors, but merely a daim of 
'^ ' relief after the debts were paid. 

It was an&ncered^ — l#<,^That itreqidred no statutory 
provision to authorise a creditor at common lair to 
resist measures which threatened to be prejudicial 
alike to the estate of the debtor and his own intarest, 
and as there were no excluding words in the statute, 
it followed that this right remained unimpaired. This 
was laid down by Mr BeU, vol. ii. p. 886 ; and had 
been adopted in practice ; Keir r. Dickey, 27th May 
1802, (Mar. App. Bank. No. 17); George Smith's 
sequestration, lOth July 1812 (not reported), ftd^ 
That the interest which the respondent had to effect 
his own relief was sufficient to entitle him to appear 
and oppose the sequestration, his interest being di- 
rectly opposed to that of the Bank, the only other 
creditor of Anderson. 

Upon the merits, a variety of objections were stated 
by Walker to the sequestration being granted. It^ 
was objected that the petitioners had no title to 
make the present application, in as much as the part* 
ners of the company, by whom they were alleged to 
have been appointed cashiers, had been divested <^ 
all powers by the trust-deed whidi had been granted 
in favour of the British Linen Company and the Na- 
tional Bank. It was also objected, upon the particular 
terms of the contract of o^rtnery, and of the bond, 
of caution, that the diligence which had been used 



IkU. COURT OP SESSION. 69 

agrinst Anderson, under the latter, was not antho- ^^^^' ^ ^ 
lind by the terms thereof; but the only objections of cherne, &c. 
i general nature, which it appears necessary to no-^' ^*^^^' 
tiee, were, Ist, That, according to the opinion of Lord Bankrupt 
fiifbni m the House of Lords (Spring 1826) in thefK'^G^. 
CMSof Ponoek V. the Commercial Bank, and Brock v. i^/: t i?^- 

' Stat, 7 Ge&, 

CUibd, it was not competent to make such an appli*/'^- e, ey. 
citioD as the present, by persons styling themselves 
cashiers of a bank. The ^plication should have 
bees made in name of the partners. Nor was the 
tide of the petitioners improved by making reference 
to the statute 7 Geo. IV. c. 67> which authorised 
kabmg companies to sue by means of their mana- 
ger or cashier, * provided that such joint stock so- 
* ciety, or copartnership, (for the purposes of bank- 
' kff) shell observe the regulations prescribed by this 
' let;* for although the bank did make returns as re- 
quired by the act, this was not done imtil six months 
ifter they bad stopped payment, and executed the 
bwtrdeed ; so that it could not, at this period, be said 
tobe a company carrying on business for the purposes 
of basking; imd, therefore, did not foil under the 
facripCion in the act, as it had then ceased to do 



S. That the statute required that the person against 
vbom sequestration was directed should either be in 
frisoB, fihoidd have absconded, or have removed from 
tteoomitry. But, in the present case, there was no 
proof of any of these circumstances ; neither was there 
vtf esaecatMm of seardi produced ; and, notwithstand- 
b^ the smt^iee of outlawry, he might still be in this 
raitiy ; Bell, vol. ii. pp. 172 and 174. 

li'wtA oMwereiUA. That the return required by 
fte«et had been made and certified by the collector of 



60 DECISIONS OF THE No- 12. 

26 Nov. iwa jjje stamp-duties ; and the statute had declared that. 

Ch^nX&c.tv*liis certificate was full evidence of the fact. . The ob- 

wiker. jection that the bank had then ceased to do business 

Bafdcrupt. was quite untenable. The company was not dis- 

^toTw "g-^ solved, or its ajQfairs wound up ; and until this was 

///. c. 137. done, it still subsisted, and the partners were liable^ 

/r.e. Q7* as such, and as individuals, to company claims^ It 

^^^' was no where declared, and it was absurd to hold 

that, because a company falls into embarrassment, it 

was to be deprived of the privilege conferred by the 

act. But all doubt was removed by section 7th of 

the statute. 

^. That the sentence of outlawry against Anderson, 
if not direct and conclusive, was at least prima Jade 
evidence of the fact that the debtor was furth of the 
Idngdom ; and this was all that the statute required. 
A messenger's execution of search would not, per se^ 
prove the fact, but would only establish that tho 
messenger had not found him at home. If the fact of 
his being abroad was denied, it was just one of those 
which required to be proved aliunde ; JSellp vol, ii. p^ 
331, 4th edit. ; and die evidence afforded by the sen^ 
tence of outlawry was in the same situation. 

When the case came to be advised, a majority of 
the Court were of opinion, as to the title of Mr W«i« 
ker to object to the sequestration, 1st, That it was 
competent at common law for a creditor to appeai; 
and oppose the sequestration of his debtor^g estate ; 
and that it would be putting too strict an ipteirpr^ta^ 
tion upon the statute to say that it had taken awajr 
this right, and that the only remedy afforded to 4 
creditor was to apply for a recal of the sequestration, 
if it had been improperly awarded ; and, 2d^ That 
the interest which Mr Walkermight have to preserve 



No. 12. Court of session- 6i 

a hmajide security in relief, was a sufficient legal ^^^^J;J^ 
istatst to oppose the sequestration, which would cheyne, &c «. 
iifc the rfTect of cutting down this security. — Lord^ ^^^' 
GS2Sm, however, had some doubts whether, under the Bankrupt, 
of the act in question, it was at all competent sSt^%w! 



ftr a creditor to appear in this stage of the proceed- ^^^^ ^^ 
mgs, and oppose the awarding a sequestration. The iv. a e?* 
powers of the Court in this matter were purfely 
rani^eria], and they had no jurisdiction except what 
Ae statute expressly conferred ; and the statute had 
merely provided (with regard to the case of creditors) 
ftat, where a sequestration was granted without the 
amaurence of the debtor^ it was competent for a ere- 
fitor to apply for recal of it ; but his Lordship had 
great doubts how far a creditor was entitled to appear 
and oppose a sequestration. 

Upon the merits of the opposition, however, their 
Lordshipe were unanimously of opinion that the ob« 
jections arising from the execution of the trust-deed, 
and from the terms of the contract of copartnery and 
of the bond of caution, were unfounded. 

^Wl&i regard to the objection that, as the company 
bad ceased to do business as bankers, they were not 
entitled to the privileges afforded by the 7 Geo. IV. 
dL 67, of suing and being sued in the name of their 
ofice-bearers, their Lordships were also unanimously 
of opinion, that as a mercantile company might con- 
tinue to act for the purpose of winding iip theSr af- 
fiiM8,so the managers appointed for that purpose had, 
under the act of Parliament, all the powers competent 
tatbe officers of the company, while the business was 
wried on. 

A majority of their Lordships also thought that the 
Kntence of fugitation afforded sufficient prima facie 
e^ence of Anderson being furth of the kingdom ; 
aodthis was ail that the statute required. It might 



03 DECISIONS OP THE No. 12, 

it Nov* 18^ i^ necessary to prove it otherwise if the fact were 
Cheyoe, &c v. denied ; but it was too much to say that a person was 
^ ^^^' not to be presumed to be out of the country, who had 
SofOcrupL been fugitated. — Lard Craigie^ however, had some 
^m1»4 GtfT doubts whether the sentence of the court of Justiciary^ 
if^: « l?^* P^ ^9 afforded that evidence, which the clause in the 

SUiU 7 Geo. ** 

/F. o. 97. bankrupt statute required, of a debtor having fled the 
country, which was necessary to constitute public 
bankruptcy. 

The Court awarded sequestration. 

Lord GiOies^ OrdiDary. For Cheyne and Mackersjr, Skene. 
Imw and Rutherjfbrdy W. S. Agents. For Walker, 

Jlkon. Geo. Lyon, W. S. Agent. D. Clerk. 

C. 



SECOND DIVISION. 

No. XIII. 26 November 1828. 

Sm JOHN MAXWELL and Others, Trustees 

of Sir Thomas Brisbane of Brisbane, 

against 

JOHN LEAD. 

Boi>rA Fide Consumption. — The plea qf bona fide 
consumption against a claim Jbr violent pn^ wom 
sustained in favour of a tenant who had dtfended 
himself against an action qfremomngfrom part ^ 
his farm during the currency qf his lease^Jhunded 
upon a stipulation in his tack hindtnghim to do so; 
aUhough the lawsuit in which he wasfinaUy unmc^ 
cessful was not concluded till qfter the natural e^ 
piry if the lease. 



No. IS. COURT OF SESSION. 68 

Tn kte Mr Brisbftne, the pursuers* constituent, ^ ^^°^- ^ ^ 
a lease of the farm of Chapeltown to the de- Maxwell, &c 
for fifteen years from Martinmas 1806, with a*- ^" ^^ 
\ fcserving power to the landlord and his heirs, bom Fide 
it an^ time during the currency of the lease, to f eu ^^"•*^^''*^ 
tfe whde or any parts and portions of the said lands, 
ikej alknring recompense for the ground so feued in 
proportion to the rent payable for the whole. The 
otent of the honn was about 70 acres, and the rent 
LS per acre. 

la 1815, the pursuers disponed about 84 acres of 
the iann, in £eu, to a purchaser for a nominal feu^* 
dntf of one shilling, and a price of L.5500. The 
pnee was payable at Martinmas 1815 ; and the pur- 
dttser was to get entry, and to be put in possession 
of the lands at that term ; but it was provided that, in 
case the tenant should resist the removing, and re- 
tain poBsession by means of a law-suit or otherwise, 
the sellers should pay interest upon the price until 
the purchaser should obtain possession ; and, on the 
other hand, that they should be entitled to uplift the 
mfs, and to make their claims against the tenant for 
Tiokat profits, &c. 

Lnmediately after entering into this contract, the 
pDisaers required the tenant to remove, in terms of 
the dause of his lease, from the part of his farm thus 
feued; vie. from the arable land at Martinmas 1815, 
nd from the pasture at Whitsunday following. 
The defender resisted this, upon the ground that the 
tie, wader the form of a feu-contract, of so large a 
yntien of the farm, was not such a feu as was con- 
(■emplated by the parties on entering into the lease ; 
M, Ihenrfore, did not fiedl within the power reserved 
I7 the landlord. 
The sheriff decerned in the removing. The tenant 



64 DECISIONS OP THE No. 1* 

^vi^LlJ^^P'^^s^^*^^ a bill of suspension of this judgments and 
Maxwell, &c. retained possession. The Lord Ordinary sisted tbc 
«. L ead. susi)ension till the trustees should bring an action of 
B<ma Fide declarator ; and, thereafter, repelled the defences, and 
comumjuum. ^^^^^^ j^ tenus of the libel in the decldrator ; and^ 
in the sus})ension, remitted to the sheriff simpHciier ; 
reserving the suspender's claim for compensation fbr 
the lands thus taken away from him. The siuspen- 
der petitioned against this interlocutor ; and the in* 
ner«-House, by two consecutive judgments, altered the 
interlocutor of the Lord Ordinary, and sustained the 
defences and the reasons of suspension. The trustees 
appealed ; and the House of Lords reversed the judg* 
ments of the Inner-House, and aflSrmed the intei^lo* 
cutor of the Lord Ordinary. 

This last judgment, by which the decree of remov- 
ing was finally affirmed by the Court of last resort, 
was pronounced in March 18S5, three years after 
the natural expiry of the lease. The tenant, conse- 
quently, who had retained possession pending the 
law-suit, continued to occupy the land in question 
during the whole period of his lease, notwithstanding 
the decree of removing by the sheriff in 1815, and 
the Lord Ordinary in 1816, which was finally affirmed. 
The cause, on its return from the House of Lords, 
was remitted to the Lord Ordinary, who proceeded 
to hear parties on the claim made by the pursuers 
in name of damages, violent profits, or otherwise. 
The pursuers condescended, and restricted their claims 
of damages to the difference (being L.178 yearly) be- 
tween the interest of the purchase money paid by 
them to the purchaser during the last six years of the 
lease, and the tack duty of L.102 (at the rate of hS 
per acre) which they had received during that period 
from the tenant for the S4 acres which had been 
feued out. 



3id 11 COURT OP SESSION. 65 

Thcifefender resisted this claim on the plea of &^g gyov^ W 
mfde consumption ; and the Lord Ordinary. pro-]viaxweii, &c: 
msced this interlocutor : ' Sustains the plea of bond^- Lwd. -> 
"Jiksmw stated by the defender, and, therefore, as-BmaFU^ 
* soilzies him from the conclusions for violent profits ^^••*~/»'**^ 
' or damages/ His Lordship added the following 
note: ' The Lord Ordinary perfectly understands the 
' aigmnent of the pursuers, that the disputed question 
' in tliis case related to the interpretation of the agree«i 
' meat of the defender himself; and, therefore, that, 

* while the Court found much difficulty in deciding 
' that question, the defender himself, who knew his 
' own meamng, . might have no difficulty at all in the 
' matter, but be in mala fide in denying what he 
' imew. It is an argument that may be conclusive in 
' many cases. But the Lord Ordinary does not think 
' the present case affords room for the application of 

* this argument. The Lord Ordinary sees no reason 
' to believe that, in the lease, the defender had not the 
' understanding he alleges, though that could not 
' entitle him to succeed against the legal interpreta^ 
' tion of the words of the writing, to which the lease 
' was entrusted. In giving this opinion, the Lord 
^ Ordinary has not the least notion of suffering to be 

* disputed, in, any respect, the accuracy of the judg* 
' ment of the House of Lords.' 

The pursuers reclamed ; and pleaded-^This is an 
attempt to apply the doctrine of bona fide consumption 
to a case of breach of contract, in which there is no 
nxnn for such a doctrine. The defender, as has been 
finally dedded by the judgment of the House of Lords, 
vmnnder an express contract to remove in a certain 
erent He did not fulfil this obligation ; and, conse* 
fiently, he must be liable to make up to the opposite 
puty all tbe damage which has actually been incurred 

E 



96 DECISIONS OF THE Np. 1& 

WNbv. n&ain cansequence of this failure to implement. He may 
MMcweuT&c. ^^^^ ^''^^ ^^ perfect good faith to maintain the litiga«* 
V. Lead. tion — ^that is to say, he may have thought his plea a 
Bona Fide good One, and expected to gain his cause ; but that is 
Cmuw^pUan. j^^ defence to a party, who is ultimately found in the 
wrong, from making up to his opponent all the damage 
which has been the consequence of his failure to fulfil 
his contract in termtjus; and no penal damages are 
sought here, but only the actual loss which the pursu- 
ers have suffered from the breach of contract. The 
cases of Moir r. Mudie, 16th June 1826, Vans Agnew 
V. Earl of Stair, 19th May 1826, the Duke of Buc- 
deuch V. The Queensberry Tenants, &c* were all in- 
stances of reductions of titles, upon which the defend- 
ers were in possession, and which were valid until re- 
duced, and where there was no contract, either ex- 
press or implied, between the parties in the la^-«uit* 
But the present case is an action in which a party has 
been all along wrongfully refusing to implement the 
obligation of his own contract ; and the result of the 
Lord Ordinary's judgment, if it stand, will be suiB- 
ciently singular, as the victorious party will gain no- 
thing by his law-suit, and the person who has been 
finally declared to be in the wrong, pleading against 
his own contract, will get all the advantage whieh he 
oould have had by complete success. 

The defender amwered— The doctrine of the law of 
Scotland with regard to bona fide possession (eapedal^ 
ly in the case of tenants) is quite fixed. It ia laid 
down clearly by Mr Erskine {InsL lib, ii. tit. 6, j 1^1) 
and has since been confirmed by a long series of uni« 
form decisions. The case of Carnegie v. Scott, 4th Dec; 
18279 was still stronger, and more favmurable to .th# , 
landlord tlian the prdsent* . , 

The Cenrt unanimously refused the note ; adheEe4 



Ho. IS. COURT OF SBSSIOU. Vt 

tothe intaioeBtor of the Lord Ofdhiary ; and found ••^<^^- ^•^ 
dtfdefaider entitled to expenses sifice its date. HiaweMtc 

«. Lead. 

The Lord Jugtiee-Cleri^—l have little difficulty in bouT^ 
UfiTing tt an opinion that this interlociitar is right, ^^»^^p^^ 
vfm ire attend to the prind{^s whidt hare ruled 
Anaer dedskms» in reference to the dscomstances of 
tU» ease. This is a question npom a lease, and an 
aelim of removing. If the argument for the pnr« 
nora irere well founded, it would did&Tb' faaek the 
daitt fer ilolevt profits to the first moilieDit when 
thqr required the tenant to remove, which is directly 
cMitnuy to the fixed rule of the law of Scotland, and 
<» tie derisions in the cases of the Queensheny leases, 
af A« Duke of Gordon v. Innes, 19th June 1828, and 
cNhers of a similar description. It is impossible to 
liAigiiiBh the case of Carnegie f. ScoM; &otn the 
pcsent ; and the case of Vans Agnew v. the Earl of 
kmt baa subsequently been affinbed on appeaL 
' Lofd Gtenlee concurred. 

hitd PkmiUy vtba of the same opiiiiaBQ: It is too 
iile WW to go back upon the doctrine of hmajide 
sMBamptioti, as applied to contoact^ of tiiis descrip- 
iML tlnqnestioiiaUy, the efiect of the ie^lication of 
ftitdoetrine to tids particular case is anomalous, as 
iheiMdt is that the landlord gets no benorfU; £rom his 
ictioa by gaining his cause. But ^bm^ tmeanawer to 
tkt plea is the maxim, that maju9 et nuitMinen t(U 
fmt^ciem. The same argmnent wias^ used in the 
CM of Carnegie v. Scott ; and it was a consideration 
rfttulse consequences that influenced me when I pto* 
umneed the first interlocutor, as Lord Ordinary in 
dot cause, by which I found violent profits due. Af-- 
terlbad done so, the judgment was pronounced in 
tile cases of the Queensberry leases, which induced me 
teTwall that interlocutor, and to order meroorialti. 

E 2 



68 DECISIONS OP THE Na. W. 

86 Nov. isa a J jjjgjj altered my views in consequence of the judg-* 

MaxireU, &c ment of this Court, and of the House of Lords, in 

V. l iead. those cases, and came to the opinion which I after- 

Bona Fide wards delivered in the case of Carnegie i). Scott, and 

oMumpium, ^jjj^jj J g^m retain, that violent profits are not due 

till a coMcientia rei aliefue is induced on the mind of 

the defender, and that such knowledge, or consdentiOf 

cannot be held to have taken effect in the present case 

before the date of the judgment of the House of Lords* 

I think that the decision of that House, on the ques« 

tion with the Queensberry tenants, settles this prin« 

ciple. 

Lord AUoway concurred. The pursiiers misappre- 
hend the principle on which the doctrine of bona fide 
consiunption rests. It results from possession ; and 
whenever a party is in honafide^ and in'possession un« 
der a title which requires to be reduced, or set aside 
by process of law before the subject can be evicted 
from him, he is entitled to retain possession till the 
issue of the law-suit, and to plead bona fide consump^ 
tion against a demand for repetition of the fruits. I 
dissented from the judgment in the case of Carnegie 
r. Scott, because I doubted whether Miss Scott had I 
ever had legal possession under the lease on which Ai& ! 
foimded, because the action of removing was raised 
immediately on the death of her predecesdoi' ; and I 
also doubted whether the terms of the judgment of the 
House of Lords in that case did not preclude us from 
entertaining the question. 

Lord? Ordinary, PUmiUy and Mackenzie. Act Skene^ 

Shaw StexvaH. Alt J. J. Murray. W. Patrick^ W. S. 
and W. A. Martin, W. S. Agents. F. Clerk. 

U. 



lb. 14 COURT OF SESSION. 09 



SECOND DIVISION. 

No. XIV. 27 November 1828. 

Mks M*CRIE ok TULLOCH, and Others, 
DAVID LOTHIAN, 

AsiESTMEKT. — A wofTant having been obtained, un^ 
der a sequestration, to sell part of a tenants effects 
for payment of the rent then due, and he having au.-- 
ikarised the auctioneer to sell the whole of his effects 
far payment also of the current rent, and aU other 
ddris due to the landlord, and to take bills in his 
i&e auetioneet^s) name for the price, accounting to 
Ae tenant Jbr the surplus, the residue was effec-^ 
tsaUy attached by an arrestment used in tJie hands 
^the auctioneer during the currency of the bills. 

WiLUAM Drummokd, the tenajit of the farm of 
Nether Dalkeith, having fallen into arrear of rent, the 
lAde of his farm-stocking, &c. was sequestrated at 
the instance of the landlady, in security both| of the 
lent past due, and of that for the current term.* 
On the 87th of August 1822, the sherifT granted his 
warrant to sell as many of the effects as would satisfy 
tke rents then due, and expenses of sale, &c. Before 
^aale under, this warrant took place, Drummond 
granted a renunciation of his lease, and, along with it, 
t letter to the landlady's commissioner, authorising 
Um * to carry the warrant of rouping, which he had 

* already obtained, into execution, not only for the rents 

* already due, but for the current rent, and for any othep 



9g DBCHfOMB tHT Tim N«^:lC: 

» y Nov. m a. « claims due by him to the proprietrix,' &c, * Any sur- 

TttUoch, Ac. ' Pl^^ arising, after you have sold my effects, to be ac- 

«. Lothian , < counted for to me by your agent, Mr Moncrieff, wri- 

ufrrMAnmt ^ ter in Perth„ i!^ho is atftill liberfy to subscribe the ar- 

' tides of roup, and to draw the bills, and receive the 

* C98h frofn the purchasers. Credit to be glveu in the 

* articles of roup.* 

Under this authortty, Mr M^ncrieff {the OietifTs 
commissioner, and landlady's agent) sold the whole of 
Drummond's crop atnd stoddng; partly for ready mo- 
ney, and partly for bills payable to himself at Whit- 
sunday 1SS8. The ready money wbb not sufficient td. 
pay the rent due to the landlady, and secured :to her 
by the sequestradoa ; the boliEaice, therefiNre, for which 
Mr Moncrieff was to account with Drummond, arose 
solely from the sums doe upon the bills. 

On the 22d January ldS8, during the currency of 
the bills, the claimants, Mrs Tullodb, &c. who were 
creditors of Dnunm(»id, used an arrestihent in the 
hands of Moncrieff over the balance due by him to 
Urummond ; and on the 81st May^ a few days after 
the bills were paid, a second arrestment was used by 
the other claimant, Lothian. Mr Moncrieff raised a 
process of multiplcpoinding before the sheriff <^ Perth*-, 
shire, in whidi appearance was made for both the dai«- 
mants, as well asfinrthe oommon debtor; and the 
question at issue was, whether there was any fund iir 
Mr Moncrieff*8 hands, during the cumncy of the MUs^ 
which could be attached by the former anestmMt ? 

There .was some disoession in the inferior eourt^ 
whether Mr Moncrieff was to be hdd as having geiN 
ranteed the bills, and was entitled to charge €lel crederp 
commission on the whole amount of the sale ; but the 
Court was ultimately of opinion that this circumstaoeQ 
did not materially affect the vatidtty of the^fifet ar-* 
vestment. 



M*. ri COURT or sbssign. n 

Tksberiff pronounoed the following iaterlocutoi: ^^g* y^^ - 

* this, from the table of fees adopted in this court^Tidiock, ftcb * 

* Aat a person having the charge of a roup, taking^ ^^^^ * 
' place in consequence of the sheriff's warrant, is held 

* haUk fbr the amount of the roup-roU, and is allowed 
' at the rate of 2} per cent, npon the amount of the 
' proceeds, if for ready money, and 5 per cent, if on 
' credit, for his trouble and risk ; Finds, that the pur- 
' mer's charge in this case must be regulated accor- 

* din^y, and cannot be affected by the circumstance 

* of his stating an account at a lower rate, in the he^ 
' lief that the commmi debtor was to pay the landlordi 
^ and take up the biUs, as promised in his letter of TtU 
' January 182S ; and that the pursuer was to incui; 
' 9a reqpoQsibility, but whicjli promise was not ful<^ 

* fiOed,' &c. : Finds, that the pursuer, being re^ 
' qMMisible for the proceeds of the roup, leaving it to 

* ham to render the same effectual as he inclined, h^ 

* was debtor in the proceeds, less his claim for troubli^ 
' and diabnnements, from and after the 22d October 

* 188S, the day of roup, and that the claimants must 

* be preferred according to the priority of their arrest- 
' aents : llierefore, prefers the claimants, the widow 
' and duldren of John TuUoch, primo loco, for th^ 
' principal sum oi L.50, with interest from and after 

* the 8d July 18S1, and the claimant, David Lothian^ 

* iecuMdo et ultimo loco, to the extent of the balance ; 

* and deeema accordingly.' 
lie Lord Ordinary, on an advocation, altered thii| 

jodgasent ; found that Mr Moncrieff couM only charge 
ihe dH credere commission on the portion of the pro^ 
oeds sold on credit, which was required to pay the rent 
•mred by iht sequestration ; but, quoad ttAira, that he 
Ineiffred no responsibility for the bills, and was nojb 
debtor to Drunuucmd for their contents ; and, there* 



i I 



7» DECISIONS OF THE No- U 

27JJ«wW8.:£^j^^ preferred Lothian, the second arrester, to the 
TuUcch, &c. fund in medio.* 

«. JUoUiiaiju . 



Arretimen^. 



* The inljerlocutor of the Lord Ordinary was as follows z, — ' TJhe Lori 
^ Ordinary having heard parties at the Bar, and having since advised this 

* process of advocation, in "A'hich the record has been closed. Finds that 
^ 'William Drummond, tenant to the liight Honourable Ladjr Keith in 

* the farm of Nether Dalkeith, at a rent of L.64 sterling yearly^ fell 'v^ 

* arrear of rent in the year 1822 ; and, in the harvest of that year, a se- 

* questration was awarded by the sherifl'of Perthshire for payment of lent 

* then due, and for security of the year's rent then current : Findii thal^ 

* on 22d August 1822, warrant was granted for a sale of Drununoiid*s 

* effects, to the extent of paying L.32 as half a year's rent then payable, 

* and for expenses ; and, foreseeing that he could not continue to posiess 

* the farm, Urununond granted to Mr Loch, the landlady's commiasiapet^ 

* a letter, agreeing to remove at Martinmas next, and proceeding thus :— 
(Sept 537- 1822) ^^ As I am anxious to save any additional expense being 
f^ incurred in securing the landlord's ri^t o^ hypothec tor the curveot 
^ year, payable at Candlemas and Lammas next, I hereby authorise yo|i 
** to carry the warrant of rouping you have already obtained against me 
**• into execution, not only for the rent already due, but for the curreot 
*' rent, and for any other claims due by me to the prc^rietrix wad/^wf 
*^ lease, or otherwise, and for the interest and expenses already incurred^ 
** or to be incurred, in carrying the said sale into execution ; any surplus 
** arising, after you have sold my effects, to be accounted for to me by>your 
«( agent, Mr Moncrieff'.' Finds that, in consequence of this consent, Mx 

* Moncrieff sold the whole of Drummond's effects, whereby he realised a • 

* sum of L. 190. 6s. 7d. of which L.31. 7s. lid. was paid in ready money, 
f and for the balance bills were taken, payable to Mr Mqncrfeff at Whit* 

* Sunday 1823; and that this gentleman did not consider himseli'as acting 

* under the sheriff^'s authority is proved by his never having made any re- 
! *|K>rt of the sales to the court, which otherwise he was bound to have 

* done t Finds that, by the interlocutors of the sheriff*, it is established ts 

* be a rule of his court, that a person entrusted with a warrant of: roup un- 

* der a sequestration, is held to be liable for the amount of the roup-roll, 

* and is allowed at the rate of two and a half per cent on the amoust of 

* the proceeds, if for ready money, and ^ve per cent, if on credit, for his 

* trouble and risk : Finds, that this rule, which establishes a responsibility 
f on the person executing a warrant of roup^ and grants a very high (M 

* crwtere commission, can extend no further than the sales for which ivpxt- 

* rant could be granted ; and, consequently, its utmost extent in this case 

* can be to the amount of the rent which was secured by the sequestratiou ; 

* Finds th^ty on the amount of these sales, Mr Moncrieff' was entitled t» 

* the del credere commission on what was due by bills granted by the pu& 
' chasers at the wles ; because, although these sales were made by Drum- 

* mpnd'^ consent, the rents were secured by the sequestration, and Mf 
f Moncrieff' could not shake himscll' free from his responsibility to the isnd- 



Ik 14 COURT OF SBSaiON. 7» 

MnTuBoch, &c. (the first arrestei^) reclaimed ; 27 Nov ma. 
aitk question was argued in lases, in which they^^^^j^^^ 

V. Lothian. 

ArretifMni> 
* Urs Bift qmai idlfUj in ao fiur as the sales were made by Brumtnond's 



t akine, which they were, and must have been, after yielding a 
*§3&aBacj to pay the rent. Finds that the rules of the sheriff court can- 
*iHta{iply : Ffaids that the responsibility incurred by del credere is an ex. 
* to wj iimy undertaking, not to be presumed ; and there being not only 
' JM eTidenee of Mr Moncrieff agreeing to stand del credere to Drummond, 
«Bui the latter allowing a commission of five per cent on the amount of 
*lhefldes,biitthe contrary seems to have been understood, aag-appears 
'6«ai Mr Hoocrieff's own letter of 6th May 1823, Mr Moncrieff is not 
^CBtiUed to the extraordinary commission on the amount of the reversion 
«dKto Bnnmnond after paying his rent : Finds that, in January 1823, an 
'sDCiteent wasiised by Mn M<!ree and others in Mr MoncrleflTs hands, 
*■ debtor to Uriimmond; on 91st May 1823, another arrestment was 
*i9ed m his hands by Mr LK>thian ; and, lastly, a second arrestment by 
'Mr Lothian in December 1836, all in the character of creditors of Brum. 
*BiBd: Finds that, hi so fiur as Mr Moncrieff was possessed of funds 

* Bttanry to pay the landlady's rents, such funds were no way afiec<«. 
'tei by fbe arrestments, and, consequently, they did not affect the 
'BBsiyBoney afiiresaid, obtained at the sale, which belonged to Lady 
' fi^: Finds, That at the date of Mrs M*Cree*6 arrestment in January 

* MS, all the bills taken at the roup were in Mr Moncrieff*8 hands, not 

* ptyaUe tBl Whitsunday following ; and even if Mr Moncrieff, by being 

* npgnnhle tor tiie sums in thes^ bills tp the amount of the rent secured 
*bf lequetftration, could be held to \te the debtor personally for them, 

* vfcicfa the Lord Ordinary doubts, the arrestment used by Mrs M'Cree 
' csild BSC attach these funds which were due to the landlady, and, quoad 
' aBrii, eould not attach the money d)ie by the bills, which was not then 
' pjabie: Finds, That when Mr Lothian's arrestment was used uppn 21st 

* H^ 1823) the whole money due by the bills is, by Mr Moncrieff, ad- 

* Billed to hare been recovered by him, except a sum due by a Mr Bax- 
' ter, &r L.29. 7s. and three other small sums, amounting together to 

* L 4. 4s. 2d. ; but which sums were attached by Mr Lothian's second 

* ■ncitment in December 1826, while Mrs M<rfee used no other arrest- 
' not than the one in January 1823 : Therefore, advocates the cause t 

* FiBd% That Mr MoncriefiTs commission, in place of L.8. 14s. 7d. the 

* na allowed by the sheriCT, ought to be stated at L.6. 7s. 5d. being 

* A^snt OD that poxtioD of the proceeds sold on credit, and applied in 
' layment of the rent, and 2^ per eeni. on the remainder, and modifies the 
' 9aA commisnon accor^ngly : Finds, That after making this correction, 
' tkeftmd m meAo^ in place of L.65. 168. lOd. as found by the sherifiT, 

* aaemtB to l^M. 4a. as at ist December 1824,*' the date of the sheriff's 

* iBfaeriooitor ; and, in reelect that Mr Lothian's claim exceeds that sum, 

* pdta him to the whole thereof, with interest from that date at the rate 
*^^fneenL and decerns accordingly s Finds Mr Lothian entitled to 



r« jUBOmKOiB OF THE Ma. U: 

nJToT^^^j^^^ the goods sold were aU hypotlmcated, 
TuUoch, &c in consequence of tlK sequestration, for the rent, moi 
V. L omaju ^Yi^^ MoncrielSr, the seller, could not free himself of 
his responsibility to the landlady, nor, consequently, 
of the risk of the debts ; and, therefor^ Hwt the piAg^ 
ment of the sheriff, which found him to have stood del 
credere for the whole proceeds of the sale, was well 
founded. But, at all events, and however the charge of 
a del credere commission upon the surplus might be diSr 
posed of, that Moncrieff, acting as commissioner aad 
trustee for all having an interest, and being bound to 
account to Brummond for the i»'oceeds, was the pr€H 
per creditor in the bills, and the only person entiUed* 
to discharge the purchasers at the roup ; and, cons^ 
quently, that he was debtor, under a proper Jtu cre^ 
din, to Drummond for whatever balance might bei re-] 
covered of the proceeds, after paying the pre£e|*able 
debts, from the date of the sale ; and that the pgcseat 
was not a question about the arrestment of bills, as it 
was not the documents in Mr MoncrieflTs haads, bat the 
balance that might arise on the sale of the stocking; 
which was attached, and, consequently, that the 
authorities quoted by the respondents did not afyly ; 
Creditors of Gordon r. Innes, 19th Feb. 1740, Fol: Diet. 
(Mor. 715). In the cases of Thorold v. Forrest and 
Sinclair, 5th March 1767» and the subsequent case aris- 
ing out of it, 14th July 1768 (Mor. 758 and 754) thcj 
present point does not appear to have been pleaded; 
This is properly a question of the arrestment of' a/tt^ 
crediti, and is ruled by the decisions of Cross JuuL 
Bogle V. More, Slst Feb. 1775 (Mar. 757) ; Gnenmr 
If. Ramsay, 25th Feb. 1780 (Mor. 759) ; and Kyi^s 

Trustees v. White, 14th Nov. 1827. 

_ '^ , . . . , - * 

* his expenfles ; allows an account thereof to be gWen ifli, and remits to the' 
& Auditor of Court to tax the ssnie^ and t^ report.' 



Sol 14 OOfJfiT OF SfiSBIOff ; fi 



nip vere paid, there was nothing in the hands of xuiiocb, && . 
IfMoieff which could be the sul]{ject of arrestment ""'^^^ 
Be did not guarantee the bills, and, consequently, the Arrennm^^ 
MDami delrtor had. no claim ^ debt, ncur even of ac» 
ewBtiiif if;ainst Mm, until the money was paid* AU 
ttat he eoidd have demanded previously waa^ that the 
Ul§ ghoald be made c^er to him in wder that he might 
MDver payment. It was a claim for the ipsa corpora 
rfthe biUs ; and acpofdi^g to all the authorities these 
SR^like bags d mopey, incapable of being made the sub^ 
jptB id anestmezft ; Fewtress and Boberts r. Thorold^ 
UCbJulyJ7<i!B (ff^r. 7^4); Haddow r. Campbell^ 
91k Dee. 1796 fMor. 76») ; Dick «. GoedaU, 1st 
Ant 1815; and Dualop if. Jap^ 21st Feb. I7&a^ 
(Mar. 751) ; which last ease proves that the pro? 
perpiirlies in whose hands to arrest, previous to the 
pqmeDt of the bills, would have been, the purchasem 
at the lonp^ who were property the debtors of the 
:debt<nr. 



Ilk Court (the Lord Justice-Clerk dissenting) ~wa« 
rf<fui»n that the first arrestment was effectual ; and, 
tkoefore, altered the interlocutor of the X>ord Ordit 
Miy« and returned to the judgment of the sheriff. 

Lvd Gienle0^ — It is perhaps not necessary ^o de-; 
tcnnine tlie precise situation in which Moncrieff stooc^ 
inth ngard to his responsibility, as under a del cfig-^, 
Arfowunianmfor the foiUs. That maj affect lik^ 
mtmai which he is entitled to chat^ for his commifft 
Mioa the sale ; but it does not enter materially intu 
Ae^Mstionat issue between the two claimiints in 
tte ]Dultiplq>oindinf „ which is merely whether thcf 
fint arrestment was competent. This depends upoflC 
die fact whether Mr Mouorieff was liable to be cadle^ 



76 DECISIONS OP THE No. 14- 

'w^w*^ to account at the moment when the arrestment was 

Talioch,&c. iised. 

©. Lotibian. jj jg ^^j ^yie nomeu debiiiy nor the fund properly 
Aftatment. Speaking, that is attached by an arrestment, but the 
right of calling to account. Now, Moncrieff conducted 
the sale as factor and trustee, not only for Drum- 
mond, but for the landlady ; and he was liable to ac« 
count to Drummond for the balance, after payment 
of the preferable debts. This was a trust in which 
third parties were interested, and which Drummond 
was not at liberty to extinguish. Moncrieff was, 
therefore, not merely an interposed person between 
him and the purchasers, holding the bills upon his 
account, but he was the proper creditor in the bills, 
and the only person entitled to uplift them, and to 
discharge the debtors, holding the proceeds of the sale 
under ^jtis credifi of accounting to the common debtor 
for the balance. 

Now, I think that he was liable to this accounting 
from the date of the sale, and he appears actually to 
have been called upon by the common debtor to ren- 
der it previous to the date of the first arrestment 
No doubt, if he did not stand del credere for the bills, 
the amount of the sum due under the accounting 
would be uncertain, until they were paid ; but, in this 
case, although the amount of the sum due might be 
uncertain at the date of the arrestment, yet the right 
of the common debtor, whatever might be itd amount, 
existed at the moment, and was validly attached by 
the arrestment. This case is similar to that of the 
creditors of Gordon t?. Innes. Where, indeed, the 
right of a trustee holding bills is of that nature, 
that it can be instantly extinguished by the common 
debtor calling upon him to make them over to him, 
the trustee may, in that case, be considered merely ^ 



Ik 14; COURT OP SESSION. TT 

akody and tbe common debtor is the proper creditor^ ^^^•^■••' 
of tke granters of the bills, and may discharge them. Tuii«ch && «. 
M the trust in the person of Moncrieff was not of Lot iuan. 
tint nature, for he was entitled to keep the bills and to Arr$iimnL 
mover the proceeds for the payment of the rent which 
VIS secored by the sequestration, and all other debts 
iae to the landlady* Whatever, therefore, may be the 
case with regard to the amount of the commission ta 
lie charged by Mr Moncrieff, as to which the parties 
hare had very little argument, I think that the she«. 
itff*s interlocutor is well founded as to the ranking ^ 
the arrestments. 

LordJtistice Clerh. — I should be very glad if we. 
tonld bring this case within the rule of that of Kyles 
Tinstees, and the others in which we have found that 
tjtu credUi might be arrested. But I do not think that 
there was any right of calling to account here for the 
bills, but only for the money actually recovered ; and, 
tonaequently, if Moncrieff did not stand del credere (of 
whidi, I agree with the Lord Ordinary, there is no 
evidence) there was no sum due by him which could 
be attached by the first arrestment. 

Lord AUoway. — I think the first arrestment validj 
tad that the case of the Creditors of Gordon v. Innes is 
decisive. Even the right of calling to account a trustee 
who is vested with an heritable estate maybe arrested, 
as has been found in the cases of Grierson and Ramsay 
snd of Kyle's trustees. If the del credere commission is 
properly allowed, that is decisive of the .case, as it 
would make Moncrieff the proper debtor of the com* 
HMm debtor for all the proceeds of the roup ; and I 
tbisk that the sheriff's interlocutor, on that pointy 
founded cm the practice of his court, is correct, and 
^ it is impossible.; to divide the sums on which the 
id credere risk was incurred from the surplus, as. the 

Urd Ordinary has done. 



»8 



DfeCISIONS OP THE 



No. i4; 



TtiUoeh, &e. 
tk Ijothian. 

ArthtimenL 



t/^/iJa i^^^ Pft«w%.—dn considering this case idatiir^f,; 
I have come to be of opinion, that the riew taken if 
Lord Olenlee is correct. The cause has been com*^ 
plicated, but the main, and only question necessary* 
for us to decide is, whether the arrestment used hy 
If rsf TuUoch in the hands of Moncrieff, in Januarjf 
1823, when ihe bills granted by the purchasenv at the 
roup were in McmcriefiTs hands, and not payable tiSI 
May, was effectual. This depends upon the nature of 
the right which Druramond, the comihon debtor, had 
birer the funds in the hands of MoncriefF. If it was 
a right to call him to a general accounting, the U^ 
restment was competent. This is establi^ed hy the 
eases of Grierson r. Ramsay, Dunlop v. Japp, a&3 
Kyle's Trustees r. White. If, on the other hatid; ft 
was a right over the bills themselves — if DmmiAond 
could have demanded the ip^a corpora of the hWk 
to be delivered over to him — and if he could hare Aiih 
charged the debtors, then the arrestment was not com^' 
pertent. This was the import of the only point 
which applies to the present question, in the case df 
Pewtress and Roberts v. Thorold. It is more doubts 
ful wtiether Moncfieff had right to charge del credere 
commission ; but that question does not affect' the ViA^ 
lidity of the arrestment used in his hands. His dd 
ereilere may only extend to what was necessaiy to 
execute the sheriff's warrant, as ii arises £rom thc^ 
regulations of the sheriff court as to stock sold tmder 
a warrant. But liiis does not affect the competency 
of the arrestments, which must depend upon tfie nd« 
iure of Drummond's claim against him. The goodtf 
sold were in two situations. 1^^, They were seques^ 
trated, and warrant of sale granted on the 28d August 
1823 to sell part of them for pa]rment of the rent then 
due. This warrant did not specify any particular 
article, but applied to the whole stock and effects ge^ 



&. 14. COURT OF ^aSSION. 7» 

ncnUf, autborising the messenger to sell * as many of ^r ^y* ly 
• Ae effects' as should be necessary for the purpose. Bulloch, Jew. 
aig. The remainder of the effects could not have^<^ ^^°' 
ken sold without the authority of Drummond ; we ArmttMnk 
fflngt, therefore, look at the terms of his letter 
fitntiiig that authority, in order to discover the na« 
tone d the trust committed to Mr Moncrieff. Now, 
€a looking at the words of this letter, we find that it 
aothorizes the landlady's factor * to carry the warrant 

* of nmping already obtained into execution,' not only 
for the rents then due, but also for those of the current 
tmft, and all other sums that might be due to the . 
Indhidy; and then the letter proceeds to say, * Any 
' ttjphis arising, after you have sold my effects, to be 
' aocoonted for to me by your agents Mr Moucrieff, 
' vho is at full liberty to draw tiie bills, and receive 

* the cash £rom the purchasa^.' Xiooking at these 
voris, how is it possible for us to separate the effects 
into two parcels, and to sa^ what part was sold under 
each authority ? Drummond allows Mr Moncrieff to 
idlthe^Hiale under the sheriff's warrant; and hte 
ri^ therefore, could be nothing else than a general 
ri^ of calling upon him to account for the surplus^, 
fiecaald have no right to daoim delivery of the bills, 
ifter having authorized Moncrieff to draw them, 
and to receive the eadi from the purchasers, and to 
acamnt for the surplus I, theifefore, am of opinio* 
ttat we should return to the sheriff's interloeutw. 

Ud Oidinaryt Crin^ie. Act Dean qfFac. (MoHCre{ff) 
AnLMnrray. Alt. Sandjbrd. Ker mADkkr 

ionj W. S. and Jd. BfOKfi, W. S. Agents. F. Clerk. 

u. 



80 DCCB9IONS OF /THE* N«; Ifl 

■ ■:■■■ . ,. .t. :. fsi . ,.', ■;■ 

No. XV. 2^ Nonmber 19»l^ 

■ :.-•■•. -• • •"■.:....•, ,. I 

JOBSON AWD BAY. , ,., :\ „i 
agaimt . -. ■■■. .a. 

LAMBERT. : ',. . 

PlioCESS. — A proce^ before the irtferior omrtAt thA 
imiance if a eommUee qf a kirk^esmon^ witk ^^ 
currence of the proeurator-^cal^ concluding^^f 
penalties an account of an alleged pr(fanatiim if the 
SalAaih^ and for an mterdict^-^fmmd to beM crifm^ 
nalprocesSf and that advocation was not campeteat 
to the Court of Session, although ihe^, pursuers 
agreed to depart from the conclusion for penaltie^i 

The advocators, members of, and as a committee 8U« 
thorised by, the kirk^session of Dimdee, with.q^iMnM'- 
renoe. of the procurator'-fiscal of the coimty^ .ptji^v^^ 
a petitiou and complaint to the sheriff of Foddp^ps^jpe, 
libelling on vaifioua Scota acts against the profa^aff^B 
of the Sabbath ; and setting forth that the T^jfOfo/Slie^ 
master of the steam-boat Rapid, hj^ been in t^.pi^u;- 
tice of plying with his ateam-bqat.on.SabbflJt^wsb^i 
tween Dundee and Broughty Ferry. The jg^til^ 
concluded for payment of ' the penalties authorised by 
* law against Sabbath-^breakers/ and for an ip^xjf^jft 
In answer to this petition, it was pleaded^ If^.T^ 
the petitioners had no title to^ prpsecute. Sd, .That 
the sheriff had no Jurisdiction^ as the offence eovi-r 
plained of is said to have been committed within the 
jurisdiction of the High Court of Adqairalty. 9d, 



»6lW. court of SESSION- 81 

Dot Ae Kbd was laiil in too vague and general terms^ ^ ^o^- 1^^^ 

aidU not conclude for any specific penalties. jiblo^^TT v 

Tbe sheriff dismissed the petition and complaint, Lambert 
jnocipally on the ground, as stated in a note, of want PJ^^. 
ofjnrisiiction, and that the pursuers had not produced 
f saffident title. 

Tbe oomplainers presented a bill of advocation to 
tfeGtmrt of SeteitMU The Lord Ordinary ordered 
tklrill to be printed, for the purpose* of heing re- 
ported to the Court. 

His Lordship added the following note : — ' Tlie 

* Loid Ordinary has great doubt whether this bill be 
' competent, 1^, In consequence of the terms of the 
*act 1696« c. 31, which expressly prohibits advoca- 

* tioDS of all the said processes against profanity and 

* immorality ; and, 2r%, Because the matter at issue 
' is of the nature of a crime, and, if so, cannot be en- 

* tertamed in the Court of Session. The Lord Or- 
' fiaary, however, deems it desirable that tbe opinion 
' of the Court on these points should (if it be conipe- 
' teDt) be obtained before disposing of this bill of ad- 
' Tocation, especially as, although the terms of the 
' stttQte aforesaid be against advocations in such cases, 

* tbe spirit of it would seem not to apply to judgments 
' itfbsing to grant the remedy prayed for against the 
' proAmity and immorality complained of.' 

When the bill came to be advised, the advocators 
Proposed to depart from the conclusion for penalties in 
^ original application. 

We Court were of opinion that the prohibition in 
^act 1696 did not exclude an advocation to the ef- 
fctof trying the questions of jurisdiction and title; 
hit that, as the process was brought with concurrence 
^'tb procurator-fiscal, and concluded for penalties, it 
^ a process of a^riminal nature, and that its cha- 

F 



8ft. DECISIONS OF THE Noas.. 

^:^' ^^ racier could not be changed by the {mrsuers notsr 

jQb809, 9u:. 0. agreeing to restrict their libel tQ the ^u^tion of in- 

ijambert^ terdict alone ; and* therefore, aflvpcfttion was uot pom- 

Prooestl peteut to the Court of Sessioli. . ' 

The Court refui^ed the bill as incompetent. 

Lord MeadawbanJc^ Ordinary. For advocators, Dean^T 

Fac. (Monoreif) Tawse. G. Lyoti^ W. S. Ag*iitts 

For respondent^ Ivtyry. RUcfiis and Millers W. 3^ • 

Agents. JET. Clerk. 

T. 



SECOND DIVISIOlSt. 

No. XVI. 29 November 182^. ' 

DALLAS 
against ' 

MERRY. ' • 

' t ; • 1 . 

Stat. 4 Geo. IV. c. 49.— Juhisdictiok 2. For the, ' 

purpose qf avoiding payment of toll ex^iblejrdm * 
persons passing directly Jrom a public to a parish ' 
road, several individuals having purcJiased a sntaff^ 
piece of ground, contiguous to the tollbary and there* ' 
on formed a road^ which, branching off front t%e pd^^ 
risk road^ entered the public road beyond both the ^ 
turnpike and the boundary of the trust within whicJi 
the turnpike was situated— found that ffie use o^ 
ihis new road was an evasion, under thegenertdromt ^ 
act, entitling the managers of that trust toprosedt^^ 
for penalties. "'" '^ 

//. A sentence of the sheriff or Justices qf peace, tn%^ 
prosecution for thepenalHes of the gen&ral roddaci^ ^ 
is not sulked to review by any form qf process. '^ *'^ 



Ko.ll COURT OF SESSION. 6i 

te road between Edinburgh and Glasgow, consist- * ^^^' ,^| ? * 
bgotwhai are caDed the Bathgate and Shotts roads, ihaiM«.MeKb 

hjbai undtf two separate and distinct statutory*^' ^^ 

The Bathgate joins the Shotts road about '9ia<. 4 Gm. 



nfy jrtnb west of BftilliestoB toU-bar^ #hieh is situ-zl^H^^ii^ 
iM tf die juiictioa of the Swinton parish road with 
Ikft&gate road, so that persons travelling hy the 
ftolto and Bathgate road to the village* of Swinton 
iM neeessariiy pass through the BaiDieston toll-bar. 

Mr Merry f who resides in Glasgow, and is proprie- 
tor of eoal worics at the village of Swinton, in travel- 
ng between these {daces, formerly used the line of^ 
md BOW described — of course paying toll at Baillie- 
^ But he and several other persons, having re- 
cndy parchased or feued a small piece of ground at 
Biiffieston, made a new road connecting the Swinton 
&i the Shotts I'bads, and thuff avoiding the Baillie- 
fltatttompike. TMs new road, which is not much 
mt Iban two hundred yards in length, branches off' 
from Uie Swinton road at a very short distance from 
Alt twnpiker and enters the Shottf road just at the 
^m^ of the two trusts. The parties did not appear 
k We had atiy other object in acquiring this stripe' 
■|rwuid, and forming the road, than that of enabling 
(hem to use the Shotts and Swinton roads without 
pjfmt of the toll exigible at BaAKeston bar ; and it 
*?> their avowed purpose to throw the road open to 
%pttUicat large in the event of an arrangement be- 
i^cmidaded with the managers of the 8tatute4abour 
disbursement of the e^^pense of the undertaking. 

ui order to try the legality of this proceeding, the 
^Mees of {be\]Bathgate road presented a petition to 
«^»?lwnff ^ Lanar^ire against Merry, setting forth 
* «%e4 Art .of evasion of toll exigible at Baillieston 
^^oaing this new branch of the Swinton road, and' 
P2 



84 DECISIONS OF THE . No. 1«. 

^''^ilw^ concluding for the penalty of L,5, in terms of the 4«th 
Dallas v.Mer. section of the general road, act (4 Geo, IV« 4% 49) 

^^' which enacts, * That if any peiBon sh^ih wjjt^; wy 

Stat. 4 Geo, ^ hoTsc, Cattle, beast, or carciagje, paas from apy ^unir 

jurUdkHon. * V^^^ ^oad, oveT OTy land near or a^loiniqg^ thfjceto^ 

\ (not beixig a public high^^way) and suc^ peraop, not 

* being the proprietor, or occupier, or servant^ or <)Q6 
^ of the family of the pro{>rietor or oiecupier of. such 
' lands, with inte^it to eyadei the paymept of the tolls 
^ granted by any act of Parliament; or if any pro- 
'. prietor or occupier of any s^utdi land shall knowingly 
' or willingly permit any person {except as afb^^esaid) 

* so to pass over such land with such intent ; or* if 

* any peison, other than the toUrgatheress, shall giye, 

* or if any person shall receive from any person otjher 

* than the toll-gatherers, or forg^ counter&it, or altar 

* any note or ticket directed to be given, with intent 
' to evade the payment of the tolls ; . or if ^y p^reioB 

* shall fraudulently or forcibly pass through wy ^U^ 

* bar as aforesaid, or shall leave, before comiiig to i^y 
' toll-bar, any. horse, cattle, beast, or carriage. whatfio* 
' ever, by reason whereof the payment, of a^y tolls^ or 

* duties shall be avoided or lessei^ed ; or if any person 

* shall do any other^ act whatever, in order tq eyfde 
*. the payment of any of the tolls, and whereby the 
' same shall be evaded, every such person sh^, for 

* every such offence, forfeit and pay any sum ,not ex- 

* ceedlug £5,' , 

The sheriff-depute haying visited the j^nanusses, 
and considered apian of the same made under- au- 
thority of the Court, pronounced the following inter- 
locutor : — ' Finds it admitted that^ on the .oqi^aaion 

* more particularly lilu^lled in the original petitio^,)^* 

* defender. Merry, in travelling from Swinjt9n to Glas- 

* gow by the parish road, .which terminate ia, the 
^ great tumpike^-road from Glasgow to E^inbufgh, 



R^lS. CX)ITRT OF SESSION. 85 

* W BDt pass throngb, or pay at the Baillieston toU-^i) Nov. ifl28. 
•^fcr: finds that the defender must have gone through naiill^CMer. 
'mH toD-bar if he had not passed along the stripe of'/- _ 

* pmmi recently acquired by the defender and others,\^/aA 4 Geo. 
^ and wUdi has been by them converted into a Po^id,^^;^^^/^^:^^ 
^ by nUdi a passage is effected frotai said parish road, 
^tenniiiErting at a point on the tut1ipike*road beyond 

* srid Baillieston toll-bar :* Finds, for the reasons which 

* afe assigned in' the note snbjoined, and upon the fair 

* ad legal interpretation of the act 4 Geo. IV. chap. 

* 9; lifa^ed oil, that the defender did evade the toll- 

* di^ at said Baillieston toB^har : Therefore, finds 
^ hhn liabie in the modified penalty <9f L.3. 2s., and 

* decerns : Finds the defender liable in expenses.* 

In tte note here referred to, the sheriff remarked : 
' That the Swinton parish road forms a junction 
' irfth fte great tumpike-road beyond the Baillieston 
•'fc*; which, itadeed, seems to have been placed where 

* H is fcr Ac very purpose of drawing toll-dues from 
^'ttios^entering the turripike-road by two parish roads 
'•^WA nearly meet within a few yards of the toU- 
■bar. In order, however, to get past the Builliestbn 
**^%tov and stffl have the benefit of the turnpike-road 
^W'CHasgow, the defender, and certain other persons, 
' aeqi^ a stripe of ground- whidi is converted into a 

* roai, and thus they pass along the back of the toll- 
^ house, and get into the turnpike-road beyond the 
' bar, and into a different trust, thereby preventing 
**fte^taBtees, to whom-tilie Baillieston bar belongs^ 
■* from erecting a check-bar for the protection of their 
' iafefcat It is, no doubt, said by the defender, that 
''ttiS'is no evasion, because he does not thereby use 

* Wf twt of the turnpike^road for which he is bound 
'Itt'p^yatifae Bailfieistonbftr: But he has formerly 

* Tad,'aEvd mtst have continued t6 pay there, unless 
^4kiB had ad^ypted the plan of converting the strijie uf 



IffiCSH(»f S QP TOE 



No. 1ft 



519 H«T. ursa 




jr. €.49. 



ground Into d bye-voad»' &a ' Ab the diipiitei nxid 
stands at present, it neitbsr leads to nor from anjr 
other house 09 road^ except the8winton parish toad t 
and, as the said diqsuted road is Uagier^ is angled^ and 
is no way so convenient fis the tumpike^road, it has 
neither been made, juft is it used at^pre^ent^ £ar any 
other reason, exeept th^ti by adopting it in going P% 
and coming from Olasgov to the Swinton parish 
road, the toll i^t Baillieston is evaded* Use defen* 
der himself has sMd» that the road^has been ^ made^ 
^ whereby they are enabled to pass from the Swdwbm 
^ road to the Shotts and Glasgow read, wittxoiit pai^ 
' sing the Baillieston bar;* and the quMtioai liare jn^ 
volved becomes of the moreimpmrtancf, as «iie«de» 
fender also says that, ^hen the expense of mahing 
and keeping up said disputed rqad is repaidt ^ it will 
^ be thrown open to the public at la^ge/ So that i% is 
in contemplation, that all persons ooaaing from the 
populous district through which the Swintan read 
leads, or with which it communicates, ahalU bf 
means of this bye-road, get the use of the turnpike* 
road to Glasgow, without paying at BaUlieAon. The 
success of such a proceeding would be frau^t with 
very serious consequences to the trustees on th^ pub* 
lie roads ; for, in this way, wherever a parish road 
entered a turnpike-road, so as to be lisMe for UMf it 
would only be necessary for those travelUng stfid 
parish road to acquire a stripe of grounds ood^ 
vert it into a road, and evade the toll exigible by 
one trust, by their finding their way into another 
trust This seems contrary both to the spirit etad 
the letter of the act of Parliament, The de£»ider 
says that he pays various othertcAIs before reaeUlig 
Glasgow, without being subjected t() that at BaillifB^ 
ton ; but that statement is not reIiev«Bt,' 4fc^ - 
Idenry preaeated a bill of f^jspennqn, on ihfgrwvi 



ALift: coawr of SBSsrcnr^ 9P 

iMtekai.aot used any part wbateTcrof theroe^^y-y 
tpirrtiie charger^s mmMgemeiit ; aa^ separa(tely,ijia]is«.Mer« 
ttH'Ihe imid in question was made oa bis own pro-*'^' ^^_^ 
|R^; The IiordOidiDary passed the. bill : 'SiaL4G^ 



,IV.e.4». 



'IBmdaag^predaimed^ asuipkaded^h The com- 
filiiit 28 deadf within the letter, jof the statote*'' 
iass&r as the saspender avoided payment of toll 
at Bsillicsion, by ^ passing from a tnm<^pijce road 
land net a pablio higfa-way*' And it is im- 
t0 hold that the complaint is not also within 
Iheqiiritof the art^merel^liecanae the snspeAder's road 
off firMn the tnmpake road just at the com-^ 
of that portion of it whkh belongs to' 
tke diarger's tmst. As to this questicMi, the Shotts 
ari'Bathgate roads form one ecmttnasd line of public 
^S^1^r^, however they may be divided for the pur* 
pneaof management. 

Ibeatatale, no doubt, excepts, the case of persons 
ffbigmnc their own Land^ after leaving the turnpike 
vnd. 'But, on a fair eonstruction of the whole enaot« 
■hrt^ it as qaite manifest that this exception is inap* 
piiabletethe drcamstances of tihe present casOf ^niiere 
wwai indiiriABals ittiite in aequiting right . to a 
iaail patcli <rf gronnd^ for the sole and undisguised 
pvpoie c£ enaUing themselves^ and ultimately the 
pttc^to avindi a tempike on: the road on which they 
Mnrd^ Widioat tot^y d i sre gar ding the obvious de- 
ttpi^liw!:legislatnre, it is impossiUe to hold that 
tkaisinot a gross contravention of the enactment. 
.fiji!ia» suspensiDn is^ besides, iacomp^tent. By 
MioQ llfl of the statBte in . question^ it is enacted : > 
^Untwhen^ by tltiB.act» the adjudging of any penal- 
^^Idtfeitase, fine, or any oth^r matter, is commit* 
*ted to^fhe. stMriff, Stewart, or the jnstioes.of the 
'•fnoB. adseal>led. in their quarter sessions, of tlie 
* several shires or stewartries in Scotland, the judg* 



/r. c. 49. 
Jurudkiion. 



88 DfiCBaONS OP THE N^. 1 4 

^>iw*^ ' ment of sucli sheriff, fitewkrt^ or jttstt<^; a^^&n^Mfe 
Dallas «. Mer-' as efoFjes^, sliaU he^fiiial and €!CN(iel^v^«i^ wmd^^jaha 

^y- * not be subject to * r^ew fegif iMlvt>cAtiaii&to)r Veuspeii 

stnt^ 4 G€o. * slon, or by reduction, or by any other process o 

* law whatever, any law or usage to the contrary not 

* withstanding/ The sheriff is clearly competent U 
try the question, whether the defender, hy the ac\ 
complained of, Vwvatttge^tad hiinrtlf in the statutorji 
penalty. The judgment may be erroneous in prind' 
pie ;- but certainly it is not liable to objedfliouf'o»4hci 
ground of excess of power* If the sheriff is empow- 
ered to award the penalty^ he nttiaft of; Aeee^fatt/ bave 
authority to determine wdetiier the act or matter eom" 
I^ined x)f is that to which tibe penalty by la w^ afCadbeft. 

Lord Glenlee was of opinion that the bill ought to 
hai^ been refused. The fact that the susp^ckst Is 
joint proprietor of the piece of ground in qmiationt 
considering the obj^ for which it was BOffoired, 
ceuld net entitle him to plead die exception of the 
statute apfdkable to proprietors of lands adIjoiaiBg'tfae 
turnpike load. And, therifore> herisreiaMd tmtbe 
6imp^ plea^ that he turned off from tbe\piiUieM8d» 
just before he came to that part of it uriiichv is wider 
the managemenit of the body of truirtaes, s^HrcseSted 
by die diarger. But this^ his Lordskip fbougi^f^ wts 
not a good defence. The clause was intended Jto^ pro- 
i^e fi^r aU cases of plain palpaUe .evasion ^M^Kd tke 
present appeared to him just to be a ease Vofilha^ , 
eharaeter* v w .. 

His Lordship was also of opinion that the. olbye^on 
of competency was well founded. 

The other Judges having eottciirred witb>his i^otr^ 
ship onhotlLpoints*~ > n . *. . 

The Omrt alt^ed the interlocutor of 4he Xi^id iOr- 
dinary^ and renntted to refuse the bill ; and ifsuni^^ 
suspender liable in expenses. 



lir*. /. G. ffQpktrJe^ W. S. Agent li'or the Kespon. 

»..> ^r ,. ... ■, ^. . ...■ y-yp,||,';.,.|il ^ -, . •;, ^. 

1?!»«2T DIVISION. 
li9.JNU. S December ISSA. 

JAlffiS FffiHBR'AKD HBNRY HEPBURN 



iOHK SYME A3sm JOHN STEWART, Cadkim 
of the Perth Union Bank. 

Title to Pumsite^^Summary IhLiGXNCE.«-«iii a 
imidofcamimm, amtaiming a general clause of re- 
gitlNaiim to a prnMe hai^kh^ eompanyy^ .f^in^ 
immmume cftkeir agetU^ the cauikmere hami^ he^ 
come hmaut' toptty to the bank, or to ikeir eaekier, 
Ae ialamee uMek might be due by the agents with- 
«tf imutatum as to the amount, ha dedarmg that an 
-mtmaUeerHfiedby the aeeountantor cathkrehauld 
h'oi^j^dmtttoaecertaineueklalance^/ound'^ 

I TkatidKgeme ^raised, m the name and otAe in- 
fitnieefthe eaehier of the bank woe cempetent. 

U.^nat^i iormng and charge proceeding uponAhe 

' \mi and eerti/M aemuntjbr the bakmeedue upon 
mth account were legaland competent^ although the 
ctri^'aeeoumt^cm not n^ielered. 

Tm itependeira^ Fhher and' Hephnm, ^th others, 
were cautioners to the Perth Union-'Bank for Oameron 
^ %iet, who had been appointed the ^agents lor the 
ftiidratDankeld. ' Bf the bond, the cautioners bound 



tf BSOHKKNfS OF TBE^ tKo. VT. 

*J;^^ theme^res *• to ooutMt md pay to the.vifiM iVrlfc 

Fiflber, &o. «u * UqIod Bank, or to the said John^Syxtie^ thw raebiert 

ritff to i^ufw * B^nkj 4uid their foresaids, tb^ balwoe nrhiehiSl^dl^ 
^LntfiyZM;' HI cwseqiiAnce of the foreMid 3QYt^A.oUigttliieti9 
' graated byK and iocmpbrnt mi^ the said Gamdmo 
' and Bia^t, he found resting hy tbenii 4^ leitiMirirf 
< them, to the Sfii4 b^i|k» ai:;ca|iU]|g.a4 the Min^ shall 

* be liquidated and ascertained by the «ecoiwta.)(epl 
^ by the banfc ^tb the», &c. And it is henby.di^ 

* Glared that, a stated account, made <^ fffCm the 

* books of the said bank, and certified by th0 ofMhier 
' or accountant of the bank for the time beiQg^«.fihaU 

* be sufficient to constitute «id ascertopi a balano^ 

* and charge against us, the saidCaqaeKon and Bissety 
' and the said James Fisher, &c. ; and that no east of 

* suspension^ or other sist of execution^ shall pass or be 

* competent at the instance of us^ oreitliet of .HSiof 
V.any diligence raised on these presents^.exe^t on 
^ eons^ation only/ 

Cameron and Bisset's affairs ha^ii^ beeovie emiwr^ 
isssedf.a deoiand was made agaimst th^. KmlAona» 
for the balance due to the bank, and .a . icbaigf^. of 
horjping was given at the instancy of Itfr SynicwM 
cashier of the bank, for the {orincipaX aum of Jb^lS^tSS^ 
^ lOd^ with. interest^ according to an account xefeiSpv 
red to in the letters of homing, subscribed rby Jk)hn 
Syme as earlier, and John Stewart as accpuntont fdf 
the Bank. Stewart was soon afterwards ^j^ntedr 
<;^hier» whep he gava a new duprge in his owaname^ 
upon the same bondj for paynpevt of an miditiaudiMtt 
of L.12,197. 13s« 9d. besides interest. 

Against thesa chargpB biUs of' aiii^i2sion;wweii«fl4< 
sented and passed ; and Mr Stc^wart then raised- jSHI 
ordinary: action against^ the suspeftd^rs iwh.9^4A&. 
16a. 7d« the amount of both the snoiw.ehaj^eii.faib 



idefmientiy%athe iiierit9» the ilefnidert and Ws- ^^^1?" 



]d«ded^ 1^ That any ch^vge d^ action in Fisher, tetk 
AHHtteof aii}F deilc or officer, for hefeoof of a volun-^^'^^lfl 
iBf attodition xmt pertnerahip not entitled to the pri- Toh to Pur. 
fflsgta of a legal incorporaticm, is tneompet^it and ^iMMMfy 
frii id^ ThsA matmBxy diligenoe cannot proceed ^'^"^ 
ftrpfffmcBft of a qpedfle mmx of inoney utiless that 
HOB he bean lifUddatod, eithtf hy the decree of a 
anpcleM court, or by a decree of r^^tration inter* 
piaed to a bill ov bond for paymesA npder the hand 
ifthadiibtor. 

The Lwd Qrffiinaiy oongoined the siwipensiona and 
wfoaiy aetio9» and repeUad the objections to the title 
tf the pnrBttCBra, and to the cpsc^tency of the dili« 
pmt, The aMpettders reclaimed ; aod the Court 
i«tt)tdeved eaaea on the qaeetton of titles 

iVftuM for tlie aospeoderB*^ 

Qae of the distinctive {Hriyileges of a ccnrporation ia 

fM €f suing by its office-bearera} hut that right can* 

Mtbiassanied hf vohmtary associations, whostre not 

Mctkiaed m the manii^ reqnjred'by la^ for the con** 

AiMtmi of a eorperaticait The rights of the inditi^ 

iiels4oiinited must be made ^fectual at the instaaea 

of ihe individuals tbemsalvea. They have no nomeii 

/■w ag a society. This principle has been recognised 

Iqr repeated decisions ; Mason Lodge of Lanark t^. 

BnaOton, llth June 17^0^ Mem. Bee. (Mor. U,5M) ; 

ftnivfctdi', Itfitebdl. ISOi Jua^ 1T61, (Mor. 19ft8 ;> 

i 9. Gordon^ 7«h July 1810 ; Culereueh Cotton 

e..Matbie, STth Nov. 1828 ; Wilson p. Kip^ 

poi, 7th June 1883 ; aiid the same prineipile was laid 

dMiEbf LontGtffoid in the House of Lords (Spraig 

ttuy m the cases of the Commercial Bank v. FoUock^ 

(pHloaghrbolli paMiea^agreed to wwe the oljeetjon) 



SIA DECISIONS OF THE No. VK 

^iii!? So imidh was <hfe fmdeMfx^od to 1m tb« ]<rv^, thsC 

visher, 4t. o. the Stat; 6 Geo. IV. e. 18]» was j^aased/ aHtfiHtfg 

sjrm e, j-fc. copaTtiitt^pa to pTOMcute m^ter thefr tfespeMlve 

Ttiu /^ Ftir. firmd. That atiatute was onty to entire for ^a year/ 

|^^^„„,^ 2Hff and it waa not renews ; and, ^v^n dttringita ^xis^ 

ff^^- teiice, it' 6Xj)t«68l3r exempted all queBtions* then de^ 

pendiig befate atty cooit of law. Another aCMute 

Was aft^Mnai^a Iteaad, 7 Oeo. IV. c. 9r, allowing 

hanldbg eonipanies, under certain reflations pre- 

acribed by Hieact, to sue and be aned in name'of 

flieir manager, cashier, or principal officer. The tact 

reqtitrea that every company dahning the privilege of 

it must annually render an account of the names and 

placlBd of abode of ail the partnera, aiid <rf the name 

ilnd place of abode of the officer by iiriiom the society 

shall sue or be sued. No such conditions WHMdd haw 

been required by the legislature if these oompanied 

had the same privilege of suing and behig sued at 

common law. 

No doubt, there are some instances where actfMa 
have been brought and sustained at* the instance of 
private companies, but in such cases no (Afect$(Mi waa 
taken to the title ; and, therefore, they afibrd no au- 
thority that the title was good, ot that the title wo«1d 
have been sustained if objected to. 



/%(lefei^ for 1he4!harger 

It is competent, according to the taw and practice 
of Scotland, for a commercial company to Itoef in the 
xttome of the iirm, or even under their usual d^igna- 
tion or descdptioii, when the instance is suppOHied by 
the individuals whose names abd signattires iare tin* 
derstood to be equivalent to a firm in all their trans- 
actions. • "' ' • >• .i • • : 

A mere general' natoe hiay -itot be' sufficient t>r{t« 
self, except in the case of corporations, to found an ac- 



Mo. 17. COURT OP 8S»8iONt M 

tia; bA, ia SMtkn4»ij»iiiemoriAlfpnietkQ<liWM far '.^^^^ 
luuJfcA thcL.giCHeKd pniriple aa^to adxiiitsa^^fi^fiiaffi-tFkiusr.fi^fk- 
dBrt.iflsfiuicR (tie AUft^ ap fisiii9* of tasMclMiwfk en^^y "^^^ 
Cmiiflto^fortb^pturfoaesof teade^ The coilipaay ia7Viftf9iHHv 
tjr hv widenitood to form a conoitrHCtiw^ P^^***^- iS^nm mii 
viMse ddigatiopS' ai« .sdBiawh^ dktiiicl: fr^m : the ia^^''^* 
4ividial perti^ers. In wdfr to huid .the .c om ift i iy» 
(hofiigiiatim <tf tlie.fihn:iB 9uaeie«;t» wilhwt Ihat of 
theindHdoBi partuers^ evonaltliou^ the &nn shOHld 
mteiQ names «f pertons who eredeeeeeed^or who 
ka?e ensed to foe partoera. The admitted praetiee ia 
kofltile to the propcaition laid down hy the ausp^ 
en.. 

A sittilar practice holds with regard, to aettan 
or diBgeace raised against a eompany* This pc&nt 
vsB discaaBed icr the ease of ThoBis<m v. Liddel * and 
Compenj^ 2d Julf 1818, where^ upon a homjiBg.din 
lected againat the firm of John Lidddi and Companyi 
it was found competent to charge the individual part^ 



If diHgence so directed be good against the iadii 
ndad nemheia of a company, there is no reason wJby* 
ia pfosecqtiiig an action, the instance in name o£ the 
fan ef the eompany diooU not be an effectaal in-t 
stance for behoof of the individiial partners. They 
both rest on the same princijile. 

This principle. Sanctioned by practice, WiUauK^p* 
flf to Gopartaera having a mere descriptive fiitm.or 
ifpeUatioQ diSerent from that under which they eolh 
taet tbeiff obligations; and this distinetron was jeoog^ 
Bified in the case of the GalcKueh Cotton Qempany* 
i«&tted to. by ihe-saspendera* 

NeitheirwiU the principle »pi4y to assedatioBa. 
bnned, not for the purpose of trade, but foreome 
Futicslar ah>9ct ia. wh9:h-.the .assoeiatad individpals' 
ace i&terested,andin which the pecuniary obligations 



9% 0EG1BIQNS OF THE tto. 17. 

^ .y yeoitwictea til OF by the body bre nut Mdieiit; W 
FMer, te. «. £ttfeigQ to Ae proper parpotes of i!m imtilbtiotif;^ & 
ippB, ft & ^ meittankile company, the cspadty ts£ bindSng iHi^ 
rM»»ii%»w Mlreff^ttBd being bound to oAers, is esuentiiQ tb^fll^ 
«f Ute ewDpany ; bat, in other ^Modtiddt^' 
there la^no roooi for the same principle: It is' upoii' 
Chte ground that die eases referred to by the Mii-^ 
pendeiB tov^ been decided ; but these eannot attbbt' 
the general rule and practice^ aceording to irhi<9li^ 
inercflntife companies arc admitted to sue woiSSBt tiltf* 
tana by wliieb ail tlidr obUgations arfe contracted: ''^^' 
In this^ ease the cfaai^^ were giren, and the ordF« 
nary action raised in name of the indiTidual holfiii^ 
the situatioir of MsMer to the Perth Uxiion Brnki 
and tiiat is the only lonn in which ike obtigntiondolF' 
the company axe contracted^ There is no partictiy# 
name or designation applicable to the whole body of 
pwtmrs, under whidh Hkef aet^ or biiid tfaemseliTidb 'in 
their coUfeotiVe oapaeity. AecDrcKng to the tiAw^ 
the copartneryi and their invariable practice, the isigkui^ 
tareof the cashier' binds the company. ' 

If the Perth Union Bank had chdsen to^ d^ipt 

themselvcB John Syme and Company, or John Stewart 

and Company, and to sign tlieir obligations bx t&iit 

fiimi^ an action in the naaie of the one orthcotfifo 

would have been good, although neither BymcWt 

Stewart had continued to be partner. It is I^b 

aivetdi of the ordinary rule of law to aditelt the'botai- 

petenqr of diligence or action in the name of th^'^ 

tual cashier, when Iftie signature of Iftat fhdiriilual 

truly forms the firm of the company. >s^ '* 

The late statute 7 <3ea. IV. c. 67, c^auiot nSe^£tk 

present case. It H not dtelaratory df What tlie'ciSitl- 

BWB law wasi before ; and it e^pready dledareii, ^it^ 

all questioiis »i^ before tile pasOng txtVke^itMtiiil 



Mbtlt COiniT QFflBSHOK. dS 

M ftartkor, th« bond was graaM to Jdm^ Sy»e,^y "^*^ 
(ftftOtsUer of ithe; PerlilLVniGti Bank^JussuoceswH^STtflrMAir. 
IB office and aaaignees; qnd whatevec ^iii^ty iCAyAMMvyiNii* 
qditia zcgard to the enforoeiwiit of oblig«tto0t con-pFnwK 
tncted to a company, there can be no doubt of the 
ftfftflyy of a cbiURge at the^iaahiBce ol tboipartica'* 
kr iniindual with vhom the express oU%atioa to 
fif watentered into; and thia ftpechil^ is joC itaelf 
affideat to remove the objectioa urged by tbe mmp&a^ 
4en» as i^ diatingniahes tba preaait caae from all tfce 
alh«(iiislied upon aa authority b^ thaoiM « Die pro- 
ttiiiaf ia not .in naine of the.aaaqdataoiir b^t inname 
tf the iadxTidual witii whom the contaact waa enten^ 



ISlfc Fkat Xliylnon Bequired the opinion of Hke 
Ug^of tbe Second IMvlBioii^ and thelnwdt CMi- 
^xy^ ypoa the following questions >^ 

* 1. Whether the Perth Union Bai(k» heiagr a prif. 
' ^,|iajncorpoiated.a88odafciontcan» by the coAimM 
' hv of ^oqthind, and iodepradentlyof the.proTiaiona 
'•9(tb^8tatate.7 Geo. IV. c 67> maintain aat action, 
'f^mu^ out diligpnoe^ in the name of the firm or de^ 
^ ^VQtrt^Q uider which they contract or obtain obliga« 
^ t^qi for payment of debts» or-p^lxrmanee^iif obti« 
' tfHom alleged to be dne or preatable to^the aaoMift^ 

v;i^ Tl^lietbef , if it be notxompetwi to sue* «Mtaueh^ 
' diligence^ or to mai^tain spcb action,, m the name, 
' fr iiqckr the gjepeial d^si^iat^'V of l3to Ferthr Unfon 
' y^^pt tbe ;Go«[ipetiroty; j|i4^peadofttiy of . tha said 
' ^tfi^jto. maiiOioomic^ mrtion^^sor fne^ oat audi • 
[ffteSfV,W*J%rSW»f^» .of any: 

' caduer or manager, for behoof of suck association ? 



96 DBCiarOlfS OF THE Ho. ir. 

^v^^^^ ' ^* Wliflthw it be ocm^etoiil. iiidepeiideii% 
v^Bber, &€.«.' said Statute, to sue cmt such dil^enee, or to main'- 
syme^ < ^^ gj^ aetiott, in the name of the cashier, for be- 
Titktifjpw^ ' hoof of said association, by virtue of the bmklfoiiad^ 
TwrnngnUMH. ^ cd ou bjT the bank in this process ?' 
^^''^* The consulted Judges concurred in the following 

answer:— 
^ We are of opmion, in answer to the third questioQ, 

' that as the suspenders are taken beiind by the bond to* 

* cont^DtMadpajtotbePerthUmonBankyortoJdin 
' Symt, thdir cashier, £ar their behod^ said to theiror 
' his asssignees,it is competent to maintain an actten^ 
' or to sue out diligence, in the name of J(rfin Syme, 
^ or of John Steward his ass^nee^ lor behoof of the 
V said association. 

* As our answer to this question appears to exhaust 

*' the cause, we submit that it is unnecessary to ent^ 

. ' on the oonsaderation of those more general and speca- 

'. lative pomts which form the subject of the first and 

* second questions.' 

In conformity with this opinion, an interlocutor was 
pronounced sustaining die title (7 Dec. 18S7). 

Parties then argued the second objection stated for" 
the suqienders, vis. the competency of the homing 
and charge upon a bond for an indefinite sum, there 
beii^ no warrant for re^stration, and in fact no rc^fis- 
tratioiL of the certified account. 

After obtaining a report from the depute-keep^ of 
the signet, the Court ordwed cases. * - 



Pleaded for the suspende 

1. According to the law and usage of Scotland/ 
summary diligence cannot proceed against any par*' 
ty, for payment of a specific sum of money, unless* 
that sum has been liquidated either by the decree' 
of a competent court, or by a decree of registration 



Ha. IT; GMrRT0F#BBa»9N. 97 

llMfMM»*^ ibiU at bMd lor payiater nndor the ^^^^^^ 
llMiiof Ae^dtHitoi* ^lf» hovrever, m Mm be lliusFiBher^toM 

4iiki*tdkiwlt^mmtlhgf tmotmidA-^rms^^ a cdnpo- roir i» jn»^« 
Bent port of the trlwtei m' ' 

^lyh■^9eac^lllIukJii^' that no creditwon ^execute 
diligenoe on his ground of debt without the^revkiw 
ttwwurfajiidg^^og a chin^ in 4he^deM -captaining 
imwMklif 4he parties to the ebtf^atiMi bebig fegis* 
taDi m ithe books of anf compet^ut cDuit» lilUdt is 
W^JQ Aer judgment bf the law» a decree to tfaetfect 
tf^nomlioB.; i&isi. B. iL tit 5, f 54. 
.rli^tllQiit an oidinary decree^ or a decree of regis-* 
tfffym fiv.the specific si^m alleged to l)e due, there 
eta be no legal warrant to issue letten of homnig 
tespsgFiaent. Diligenee eanliot even be done on 
ihi.^kec«essof jttstioes or bailies of barony, because 
iksliH^W^tire ^8 not anthorised this court to^ issue 
bMroii^f. belong on sndi decrees. 6o, on a decree 
of the Supreme Court, the charge must be strictly li* 
niiei to «tfae precise terms of the decree itself, to 
vbidi alens the debtor is bontod to yield ebedaenee; 

Although general bonds have been loug known in 
pictio^..tbis IS tke. firrt attevnpt to raise letters of 
^RlJRg fftt payment of specific sums upon sucb a 

-'MnhtOft:^ BOiStetute w usage eSapowermg judges 
in the bill-chamber to entertain My action or peocess 
%^J|^pud^rtien of debts^-or to grsut warrant for 
ktten of homing, ew^ b^ idiplea|ent of decrees pre« 
fioody obtained, and which are to be found in the 
Wdcs of some court -of r^ftosd^. : Tlte *bill<3iamber 
Vflptis qot a^fei^reAr^iitrpve^ppases the existence 
^A VS^ deercfft a^. extract of whiisb must be 
4ss)ft. at t^tiiRe q^.^p^mugXtif^ bill; and as there 
k^i^fl/afif^^^yla^ fegainst 

G 



I 



9B DECISIONS OP THE No, 17. 

* ^^^/ *i» fiUBpaider^ for the sums changed for^ or for any 
t\s^, &c. 9. specific .sum, . tl^e letters of horning were most irre* 
Sy me, ^c. gular and illegal, there being no authority from ste- 
Tiiu to Fur- tute, or Otherwise, for graAting warrant for letters of 
^^iunoty Di/u looming upon a stated account, or upon any thing but 
(f^^' ^ the regular decree^ actual or condtruetive» of a compe* 
t^nt court. 

3. The consent to summary diligence,, which wast 
given in the bond, is inept aud void, not only in eo&« 
sequence of the bond containing no obligation fop 
payment of any specific sum, but also in consequence 
of there being no consent tQ register the' staled ac^ 
qoiuit for execution. 

This bond d^ers from an ordinary hovd for a eadk 
credit, which is always for a specific sum. No hood 
was ever granted for an indefinite cash, credit. On 
such a bond, the diligence proceeds on the registfsred 
obligation of parties to pay the specific sum mentioibn 
ed in. the principal clause in the bond, beyoufd which 
sum diligence cannot proceed ; but, in onier to asoer-*^ 
tain what part or portion of that sum is due, refnreifce 
is made to a certified accouat to be made up. bythe* 
accountant or cashier ; but still it is the amount of the. 
cash credit that is the limit of the obligation. The i^ 
striction of the full apiount hy the certified accoaii^ 
is not the foundation of sununary diligence; ofiiim 
contrary, it i& the restriction of the extent to wh|ch- 
the diligence can proqeed> to prevent the banJfi ftom 
charging for the whole amount of the obligatipii whfen 
only a part may be due. 

But, in the bond in question, the principal daiisi^ 
contains no liquidatiqu or contract to pay any specifiq 
sum. It is a mere general bond, the registration, oi, 
which cannot constitute or liquidate a specific c^iia 
to any extent whatever. It does not contain any cqa« 
sent to register the stated account ; and^ therefon^ 



Ih^ 17. COUftT OF SBSgiON. 99 

ten WM so consent for that eoiistMAF*^ deexSse *2lw 
vUdi migbt form a warrant for homing. Fteher, ^ « 

4 ft 19 ettHbiished by the report <riP the deputy- ^^^*^ 
kufet of the signet, that iiiimaiWMial vaiagt and pra6- Tm& to Pw^ 
lift 18 gainst the competency and validity of ^^^^^^mm&tt itm 
dka^p-^-this being the first instance in which an at-^^"^ 
toBpt has been made to follow eiit summary dill- 
gave upon sadi an oUigati<m. Such an innovation 

• thepnietiee and usage of thecotmtty is neither 
j«t nor expedient. 

BEmM for the chatgiers-^ 

The diligence under suspension proceeded tfpon the 
aftority of the clause in the bond, whereby the sus^ 
fciders came under an express obligation, that a stated 
mwBt made out from the bbdks, and certified by the 
ttAier or aeoountant, should be suflScient to constitute 
«1 ascertain the balance against them. To this * con- 
ntydiat a stilted account should bethe foundation of 
tdttige, was added the clause of registration. 

The bond was recorded ; and the bill presented to 
AesigQet narrated the bond, and A^ narrated tbe 
MMaeooont; and the registered boild and stated 
Wut were exhffbited in the Bilt-Chttntbef . Upon 
^ hiil was written the usual deliverance : ' Flat 
*^Y[* because the Lords have seen the ext. bond 
' ttd stated account ;* and the horning following 
Witoproseed : ' Bx deliberaiione Dofllihortim Con- 
' cOii, because the Lords have seen the registered bond 

* ttd stated account above mentioned f so that the 
ttgenee in this caise was in conformity wfCh tbe prae- 
teoC Scotland. The signet is undef the cditomand 
rftlBB Gotcrt \ and it is only in obedience to the decrees 
tffteCmntthat homing can issue. These decrees 
*^aAer propeily extracted in an action which has 
^decided, or a decree of consent pronounced in 

63 



100 DECISIONS OF THE No. IT. 

# Dec la'aa. consequence of the consent interposed to a registered 
ri«her,4c.f>. obligation,. 

s j me, j-c jf these decrees are from an inferior court, then the 

Tuie to Pur^ couscut of this Court interponing its authority is 
A^!nMwfy DiiuS^^^^ ^V ^ Petition to that effect in the Bill-Chamber; 
sienoe. but, if the decree is of the Supreme Courts or by re- 

.gistration in the books of Council and Session, then 
rhorning goes out at once upon exhibition of the ex- 
. tract at the signet office, without the necessity of ap- 
plying to the Bill-Chamber. . 

But there are other cases where, although there has 
been registration in the books of Council and Scission, 
it is necessary to get the warrant of this Court in the 
Bill-Chamber — thus, where it is necessary to refer to 
something else besides the registered bond to shew 
.the title of the party, as in the case of a contract 
which has passed through different hands by assigna- 
tion. The original contract does not shew the title of 
the party suing diligence ; and it is only by making 
out that title by the assignations in the Bill-Chamber, 
,that the authority of the Court, as a warrant for dili- 
gence at his instance, will be interponed. 

The same course is adopted, and upon the same 
^principle, where the decree of consent, which is the 
main foundation for diligence, does not specify a pre- 
cise sum for which diligence is to issue, but merely 
a mode of liquidation which the party consents shall 
be the ground, to the extent so liquidated, of sununary 
diligence. 

Thus, if a party consents that the amount of the 
charge shall be liquidated by a stated account, the 
decree of registration interponed to the obligation is 
the foundation of the diligence ; and the sum for which 
,tbat decree is to be enforced is ascertained by that 
mode of liquidation to which the party himself ban 
consented. 



IPal7. COURT O^- SE5SSI0N. 101 

Whfli, in consequence of the eonimercial prosperity ^ ^^^ ^^^^ 
of fie country, bonds of caution upV)n- cash-accounts p/j|^^^C^^ 
kcsme more numerous and more important, as no^yme, ^-c, 
sum was due at the time the bond was eirfered into, xuie to Pur^ 
so that the bond could not constitute the debt to any ^• 
9ftmc amount upon which summary diligence' i^ffsjA'ffenee. 
be done — the remedy that was adopted was the paf-' , . 
ties Innding themselves, in the original obligation, that' '/ 
apaitieular mode of constituting the debt should af- 
Ard the evidence upon which the precise sum to be 
dtaiged for should be fixed. By this method, upon 
presenting the bond containing the obligation, and 
the evidence referred to by the bond itself, as the 
criterion of its extent, the Court might, u[x>n a bill, 
ntfaorise diligence to proceed for the amount so ascer- 
tuned. This was in accordance both with the theory 
ad the practice of the law in regard to diligence. 

It never was before doubted that charges upon' 
hoads similar to the present were competent. This 
nay be gathered from the decision in the case of For* 
RSter V. Walker and Hunt, 27th June 1815. 

If the certificate of the proper officer was not suffi* 
dait to authenticate the amount of the sum due by 
^bond, no summary diligence could ever proceed 
vfm such bonds. A similar example is afforded in 
ihe case of tacks, upon which letters of homing issue 
dafly, without any other constitution of the obliga« 
tioD than the registration of the tack and the decree 
thereto interponed. 

It is not necessary that the certified account should 
le i^stered. Such a plea proceeds upon the assump^ 
tioQ ttat the account is to be taken as the warrant of 
the £ligence, and, therefore, tiiat registration of it ia 
aeoessary ; but it is impossible to register the stated 
ttcoant as a step of diligence, because it does not con-i 
tain a warrant of registration ; and, therefore, if re^ 



lot DBCISH?*? OP THE No. 17. 

*wvW ^'t^'^W were wS^s^ry, it would follow that no 
Fbher, j^c* o. diligence could; ptolbeed upon oUigations of this do- 

Sy me^jc acrfptiou. .•V*.' 
^mar^ DiH. X/^, Bolgroy. — It 18 seoefisajry to attend to tke na- 
^^^ ttiire. and process of a homing. In the ordinaiy caac 

.. dPa bond for a apecific suna, containing a clause of re* 
. -*/:.. \' g^stration, the homing issues directly from the signet 
**.; • ' office, as it is said, per decretum dominorum concilii. 
But when there is any transference of the original 
bond^ or a modification of the original debt, or where 
neference is made to a document distinct from the 
original bond (as in the present case) the homing is 
not obtained per decretum dominorum concilii, but the 
party applies to the Court by a bill, which is just a 
petition for the authority of the Court ; and this 
authority is ^nnted by a writing on the bill, ' fiat ut 
* petitur, because the Lords have seen' such and such 
documents ; and this becomes a decreet ex deliberatione 
dominorum concilii. Now, this is a homing which has 
passed on a bill ; it could not pass upon any thing else. 
The wh<de difficulty is removed by attending to what 
is the operation of a bill. The Court of Session, hav- 
ing the command of l&e King's signet, in this manner 
authorises the keeper to issue horning and caption^ cor 
other diligence of the law. 

Lord Craigie.'-^l concur entirely in the opinion ex- 
pressed by Lord Balgray. The limitation effected by 
the attestation of the accountant, as affording prima 
ftde evidence of the etxtent of the debt, was chiefly or 
j^marily in favour of the debtor. Without it in this, 
and in all cases where the obligation is truly ad fitt- 
turn prssstandum, as in other cases where the obliga- 
tion is of a mixed nature-^in the ease of a lease^ for 
example, where the obligation is partly to pay qMdfic 
rents, and partly for performing eertaip prestations in 



ir#. IX COURT OF SESSION. MB 

tffemee to the farm — ^the diligenoe of homing must ^ P^'/y 
hat gone out iu terms so unlimited, as to predude^pidier, ftc «. 
£iMD the difficulty of finding caution, the rgmedy^^ "^*^^ 
bf a bill d suspension. The limitation was also for Titk to p^r. 
Aefaeoefitof the creditor, as it enabled him ^ VL'^^^amar^ nm^ 
of diligence which could not be resorted to^^^* 
.aseertaining more precisely the extent of th$ 



Ij&rdGSUeM. — ^I confess I cannot see the matted in 
the same. I^t I always understood that the in^ 
ted o c tt to r upon a bill was obtained periculo petenti9» 
and was no more than •a decree in absence^ and not 
equal fo a decree in foro of this Coiurt. The quest 
tinQ is, whether this bill, if <9posad> could havi^ 
hem passed. The keeper of the signet, in his xe- 
port) says that he has not been able to hear of any 
iutmee of such a horning passing. - What I take 
to be the prinisple of the case is thiS| that there 
BiQst be a decree of this Court either after hearing 
fHDties, or of consent. When a bond is granted fw <a 
definite sum, with a clause of registration — ^that is, a 
GODseirt of parties to diligence going xmt to the extent 
ef that sum — a registered account may or may not 
be referred to ; but toch registered account is merely 
fa the purpose of restricting the definite sum in the 
bond. It is not for the purpose of authorising homing, 
hat for restrictii^ the sum for whidi horning is to go 

flDL 

But where there is no specific sum^ the stated ac^ 
eoBiit is not for restri^ng^ but for estdiilishing the 
iBDunt itf the bond, which appears to me quite con« 
tniy to the principles of our law. . ; 

Theie must be a definite sum expressed in a regis- 
leted instrument; if it is ^lot sI>a there is no other in- 
itnuQe«4 wllich can be the wfu'rant of diligence. On 
iheaegconnda. I think this charge is not warranted ; 



$9nc9» 



IM IXECI8IONS OF TtTB Na. 17* 

^_ ^ Ikkdi that the bill on which the homing proceeds should 

Fisher, ftc. «. never hnw been passed. 

yme^^ jj^ Pf^gi^l^f^;^ — I concuT in the opinion expresssd 
Titt$ to Pfkr. by Lord Gillies. In many cases, after horning has 
SHmmmrp DuupsBsed upon bills, this Court has found the charge to 
be irregular, which could not be the case if the bill 
is to be considered as a decree of this Court. When 
the obligation is for a definite sum, it requires no 
writing to restrict it. The creditor may restrict it 
at his pleasure. In the case of a bond for L.5000, a 
diarge may be given for the restricted sum of L.500, 
without any writing. The creditor may restrict his 
diligence, as he may restrict his demand for any part 
of the specific sum due. 

Suppose, instead of a bond, this had been a charge 
upon a decree in absence, for an indefinite sum, such 
general decree never could be the warrant of diligence. 
Upon such a decreet, and the production of an unre- 
gistered account, the party could never have got a 
homing. 

The Judges of the First Division being equally di- 
vided, the opinion of the Judges of the Secbnd Divi- 
sion, and Permanent Lords Ordinary, was requested 
upon the following query : — 

* Whether the letters of homing, and the charge 
^ given thereon, in name of John Syme, cashier of the 
' Perth Union Bank, to the suspenders, proceeding on 

* the bond and relative stated account, founded on by 

* the bank in this process, were legal and competent?* 
The opinions of the consulted Judges were as fol« 

low:— 

Lords JusHce-Clerk and AUoway. — We consider 
this to be a case of great importance, as it enters most 
deeply into the principles and nature of aummary dm* 



Kk It COUKT OF SESSION. 105 

gn6e,ind must regulate^ in future, all questions ^g^ ^^^ -i 

^idad. Fisher, 4^c- ffc 

The question put to us is, ' Whetber the letters of Sy °»^^ j> 
' hming, and t^ie charge given thereon, in name ofniu ^ fu^ 
' J(dui Syme, cashier of the Perth Union Bank, to the^ y ;;,^^^ j^^ 
' flospeadem, proceeding on the bond and relative^'"^ 
*itiiei account^ founded on by the hank in this pro- 

* OBB, were l^al and competent ?' 
We conceive that they were not. 

I. It is a general rule laid down by all our institu* 
tkaal writers (Er^ 3. ii. tjt. 5, | 54) and supported 
bftbe uniform practice of this Court, ' that no credi- 

* tor can execute diligence on his obligation, without 
' tbe previous sentence of a judge. But because it 
'v^is tlioc^t unnecessary, when tbe obligation was 

* dear, to have i^ fionnal warrant in order to diligence, 
'tk expedient was fEdlen upon, that most deeds 

* shoiild bear a clause, by which the granter consents 
'to tbeir registra^on in the books of ajiy competent 
'court. This registration, in consequence of the 
' granter^s consent, is, in the judgment of law, a de« 

* 4see as to the special ^ect of execution ; and indeed 
'it earries the essential character of a decree, for the 
' deed bears to be registered by authority of that judge 
' io whose books it is recorded. The extract is sign- 
'ed by the clerk of court, and mentions the appear- 
'aaceof the granter's procuratcnr or advocate con- 
'amtiDg to th4^ decree.' 

Diligwee upon bills of exdiange^ which do not 
Mtaia any clause for registration, proceeds up- 
Qa th^ registered potest, as r^ulated by the sta- 
Wee 1681, c 20, 1696, c 86, and 12 Geo. III. c. 72. 
Urns, there is no doubt, summary diligence can alone 
pcoeeed under the direction of this Court; and it 
^(Hdy iQ obedience to the decrees of tbis Court that 
^^1^ d^^ issue under the signet ; and when thii 

Court inteipones its authority to diligence being 



106 DECISION& OF THE No. 1% 

aTDecis^B. jQgn^ upon the docree of any other court, an extmet 
ri^er, 4-c. V. of that decree must be produced, and receive wsur* 
SymM^. j^^^ foj. execution from this Coiirt. 
Tiue to Puf^ The warrants for diligence are therefore of tw6 
*Suminafif BrnM^^^"^ i 1«/, Au extracted decree of this Court in aii 
geiice. actlou wMch has been brought and decided, and 

which is a warrant immediately for homing; or, 
2r%, Where the authority of this Court is interpon- 
ed to the extracted decree of any competent court ; 
or where it proceeds upon a formal obligation- re- 
gistered in tiie books of court ; and there the groundi 
npon which it proceeds are equally clear. The debfaNT 
consents that his procurator or advocate shall ap- 
pear before the judge, and ailow decree to be pro^ 
tiounced against him in terms of his obligation. And, 
nntil a comparatively late period, it was necessary; 
in point of form, before a decree of registration could 
issue, that an advocate or procurator should sabscribei 
consent to the issuing of such decree, in terms of the ob^ 
ligation undertaken by the debtor. Until the act of se^ 
•derunt, 9th December 1670, such subscription was in- 
dispensibly necessary ; and by that act it is permitted 
to insert the consent of the advocates as procurators 
to the registration, as they were in use to do for- 
merly, and accordingly to give out extracts thereof 
notwithstanding that the advocates do not subscribe 
^ their consent.* And to this day every r^iatratioa 
proceeds upon the advocate therein named appear- 
ing for the parties; and, as Mr Boss observes, 
(page laO) ' a registered writing, notwithatendhig 

* it was gradually divested of its formalities, eontinnes 
' in effect and execution the same as a decree in ab- 

* sence, taken upon, or in terms of, an unregistered 

* deed.' Thus, a decree in terms of a i^gistered deed 
can be only in the ipsissimi^ verbis oi*' the. deed 
itself; and if the terms of the deed roistered will 
not answer the purposes of the creditor, from being 



lo. 17. COURT OF SESSION. 107 

jaiAakf so as not to warrant a charge for any \^^^ 
ifMJfesiini, it is necessary for the creditor to raise Fisher, ^ t^. 
aa ordinary action, to ascertain and constitute the^^ "^'^' 
Ml for iriiich he insists upon payment. rule /« /'«r. 

Without an actual decree, therefore, pronounced ^efmnMifif oiA^ 
by a competent court, or a decree of registration for^*** 
the specific sum alleged to be due, there can be no 
kpl warrant to issue letters of horning for payment 
of tfiat sum ; and such warrant could not proceed, 
cnen with the authority of this Couii;, upon the de« 
cRcs of Justices of the Peace, or Bailies of Barony, 
Ofcn where the parties had been fiilly heard, and 
vbere a judgment causa cognita had been pronoun- 
oed^ becaoise this Court has no power to warrant 
flBinaiy ^ligence upon such decrees. 

hn short, the charge must be in the precise terms 
of the decree, or of the bond, and cannot be supplied^ 
or rendered more specific, by extrinsic means ; and if 
iBf thing farther be requisite, this can be attained 
ky authority of the Court alone. 

But it is said there are certain cases entitled to 
SBDmary diligence, but which cannot be obtained 
vitkoitt a direct warrant of this Court, granted in the 
BakChamber. This observation applies to the decree 
rfmferior juc^es, and to persons standing in the right 
rf the original creditor. In the first, the warrant was 
MJginally granted by this Court, and is now granted 
kf a proper offieer ; and the fiat ut petitur is written 
« the hill, because the extracted decree of the inferior 
Mit km been shewn. With regard to the second^ 
bright of the original creditor may be transferred^ 
« he may be dead, in consequence of which, by our 
tonair law, no registration could have taken place y 

^ m both cases, the practice has been regulated by 

mutate. By 1693^ c. 1 5, it is expressly provided, * that. 

' dl writs registrable may be registered, after the death 

* tf the credits, at the instance t)f his heir, executor. 



108 DECISIONS OF THE No. 17. 

9 Dec. 182a ^ , „ - . i, -, m . 

>— ^y^-/ ' or assignee, as well as of before ; and that, upon pro- 

Kiiiher, &c v. * duction of a service or retour in the case of bonds, 

' * or other rights heritable, or a confirmed testament, 

TUk to Pur. « containing the bond or other rights, in case they be 

nummarjf DUL * moveable, or of a special assignation, though not in- 

* timated in the case of either ; which registration 

* shall have the same effect, both as to probation and 
' summar execution, as if the creditor were still alive.' 
And the same is again provided by the statute I696, 
c. 39- 

Here, then, as the officers entrusted with this de- 
partment are acting merely ministerially, they must 
give effect to the express enactments of these statutes, 
in the same way as if the original creditor in the bond 
had appeared ; and this sufficiently accounts for what 
might otherwise be considered an anomaly in our prac- 
tice upon this subject. 

These principles, so far as we know, have uniform- 
ly regulated the practice of this country ; and those 
cases which are said to be exceptions, we think admit 
of an easy solution, and are not adverse to the general 
rule. 

If summary diligence be demanded upon a bond for 
any specific sum, say L.5000, it is clear that the per- 
sons ministerially entrusted with this department of 
the law must issue letters of homing upon the pro-' 
duction of an extract of the bond. If demanded, the 
horning must be issued for the full amount ; but, if 
the party demanding summary diligence desires that 
the claim may be restricted to a lesser sura, either on 
account of partial payments, or on account of any claim 
of compensation which he is willing to admit, it must 
80 be restricted, because the party entitled to ask sum- 
mary execution for the full sum may unquestionably 
obtain it upon a less sum than that contained ii^ the 
obligation. 
' In the same way, if a bond for a cash-account be 



Ho. 17. COURT OF SESSION. 109 

gnnUd to a bank by A. B. & C. to the amount of ^P^^^^ 
IiJOM, and this bond is to be put in execution against pig^g^ g.^^ ^ 
iD tie parties, it is surely in the power of the creditors ^y™®' ^^' 
to restrict the diligence which they crave ; and they rttie to Pur. 
fflajr exhibit an account, by the cashier or officers oi^^^^^^^^^^ j^^ 
tkbank, as shewing the grounds upon which they^ 
hare so restricted it. But although A, B. & C. had 
been jointly bound, and the account had been kept in 
the name of A. and although he had drawn far be- 
jond L5(M)0, the sum contained in the bond, there 
roold be no ground for summary diligence beyond that 
fiom even against A ; and although bonds are very 
often granted for indefinite sums by cautioners, for 
factors, for tiitors and curators, and many others en- 
trusted with money, yet it seems to be admitted, that 
ia all these cases summary diligence is totally out of 
the question, and that the amount of the debt must 
iirst of all be ascertained by the decree of a court of 
law. 

We conceive that the report of the Deputy-Keeper 
of the Signet is most important evidence of the pr c- 
tice, and of the universal understanding of the coun- 
try. 

In the bood in question, there is no sum whatever 
specified. It is an obligation, by which the suspen- 
ders became responsible, as cautioners, to this bank, 
for their agents. Of the nature of that responsibility, 
the parties are at variance. But this does not enter 
iato our consideration, because our opinion depends 
ipon the form in which this execution was demanded. 
If it had contained a specific sum, the parties, by con-- 
seating to the Tegistration, had agreed that summary 
diligence might issue for that sum, or for any sum be* 
W it But, as there is no specific sum, we cannot 
conceive that summary diligience can proceed upon this 
bond, until the amount due on it shall be ascertained 
by the decree of a court. And we cannot conceive 



110 DECISIONS OF THE No, 17^ 

*w^ri^ that the persons acting merely ministerially, witbont 

Fiaher, &c. 9. hearing parties, or without any discussion whateyer, 

s> me. &c c^uii^ {^ Warranted to issue summary diligence upoii 

Title to PuT^ this bond, first for L.12»258. 28. 10 d. and, very soon 

'^mmary Diu^^f^^^^^d^ ^OT another sum of L.12tl97. 13s. 9d. If 

^"'*^* they were entitled to do this, for aught we know. 

Warrants may yet be issued for ten times these sums, 

although there is no sum whatever specified in the 

bond ; and these are sums merely stated to be due by 

an accountant of the bank, whose account may receive 

the effect to which it is entitled, in an ordinary action^ 

but can never afford a sanction, by itself, for awarding 

personal diligence. 

By the Deputy^Keeper's report, which is the <mly 
evidence in the cause, and which can alone be founded 
upon by the parties as exhibiting the practice, it is 
established, that he never heard of any instance of a 
homing proceeding upon a registered bond for a cash 
credit containing an obligation of unlimited amount ; 
so that no person in the profession has been found 
who ever attempted to enforce, by suihmary diligence^ 
a bond of unlimited amount. 

But these bonds, although, in general, definite as to 
the cautioners, are unlimited as to the principals, and 
afford, from the keeper's report, complete evidence of 
the practice upon this subject. For, although all 
these bonds contain the precise same clause as in the 
present case, there is no instance of summary diligence 
having been issued on any of them, even against the' 
principal, for a larger sum than the specific sum con- 
tained in the bond. 

Now, periiaps ,tfae most numerous bonds that are 
granted are those of unlimited obligation, such cm 
bonds for factors, tutors and curators, and for the 
different officers: appointed by this Court, as fiEu;tors 
loco absentis, judicial fisictors, ke. There can be no^ 
limited obligations in sock bonds ; and if such a dtose 



NflL 17. COURT OF SESSION. Ill 

at theme in question could have the effect of autho-» 2D«%i«tifc 
rioBjfmiuiiary diligence^ and of superseding litiga-j,,^^^^^^^, 
tiflaon tbe subject, practitioners would long ago haveSy me>&c. 
atadaced this mode of instructing the balance due, tv^ to pur^ 
lif the report of a respectable accoustant, who, as a^;^,,^^^^,^!^ 
nented person, and one whose business must dependy««M«- 
^OQ the high character which he possesses for impar* 
tiditjr aad accuracjr, would be superior > beyond all 
oopriatm to au officer of the bank, himself a party; 
asj naturally intcreated to report in his own favour. 

JBatJiia said that, the diligence in the present case 
nsU not be a greater exception to the general rule 
Aan what has been warranted in other cases. We 
dnifat vhether any of the exceptions founded on are ' 
AsB similar to the present case.; nor can we admit 
tke coadusieii that, because in practice one exception 
has beai introduced to a, general rule, all other excep* 
titt&s should also be admitted, and the rule itself thus 
oitttiifDed. 

Hie ease of diligence having been allowed upon a 

bonilor a -composition iinder the bankrupt acts, we 

do not hold as any exception at all ; because, in that 

iMd| the oUigation is quite specific. For instance^ 

19 the only case reported upon this subject. Brown 

ttdodicfs a Campbell and Company, 11th Feb. 1809-, 

die farad was granted in reference to a decree of the 

Cenrt iqq>nving of the composition, in which the 

tnatee had laid before the Court a full statement of 

At debts which had been ranked upon the estate, and 

vhidi it was absolutely. necessary to exhibit to the 

Court before their approbation could be given. This 

*fpobaiion could only proceed upon the Court being 

xtisfed that the proportion of creditors^ both in num^ 

Wr and value, had approved of that composition. The 

4)g9taaa also was specific ; and the bond of caution 

>^CKCRag to the decree of the Court approving of the 

oppQsitioii bouad.tfae cautioners to pay the composit 



113 DECISIONS OF THE No. 17. 

8 Dec^^ tton of 78. in the pooad, which is jmt as speeific m 
FJaher, &c v. obligation BM cBXi be granted. If the bill in that 
Sj mg, ace. ^^^^ whlch had been daiined. ob the estate, amoonted 
TiUe to Pmt. to L.SOO, the composition aaiounted to lulOS, just as 
^M«Mry iMfi.dJ8tinctl}r aad specifically as if that exact sum had been 
^'^ mentioned. 

There is hardly any bond that does not coataJn s 
penalty of one^fifth ; and yet, in an adjudication, the 
most severe diligence we are acquainted with, effect is 
always given to this as a specific sura. The objectioot 
therefore, in this case did not occur in that case of 
Brown, as the obligaticm was for a specific sum ; ani 
the certificate by the trustee, that this debt was one of 
those ranked upon the estate, was merely to shew 
that it was one of the debts to whidi the decree of the 
Court, as referred to in the bond, was interponed. It 
is impossible, therefore, to say that this was an oUi- 
gation for an indefimte'sum, as in no case ooukl tbs 
obligation exceed the 7s. per pound of those debts 
which were reported to the Court as ranked on the 
estate. And accordingly, Mr Bell (vol. i. p. 486, Si 
edit.) states this case as his authority for making efiec* 
tual the composition-contract by summary diligence 
when the debt is liquid. Thus, ' if the creditor holds 
' written vouchers for his debt, or, even where it is 

* not so liquidated, if he has entered his claim in tenns 
' of the act, during the subsistence of the sequestm* 

* tion, and the trustee has marked his grounds of debt 
^ as pkroved in the sequestration, the creditor is ca» 

* titled, on a debt m proved, not only to insist fi>r his 

* composition, but to have summary diligence on. the 
^ bond for payment of it' 

No doubt, it was stated that the looseness of the 
procedure upon summary dih'gence had even gone 
the length of warranting a messenger, who had ktiers 
of homing rgainst the firm of a company, to cfaargft 
M'hom he pleased as the membos of that companft 



V9. It pouRT OF session; IW 

Wetmaaveiliat iUs is a mlfitaken condusioh fomi*^ ^^^ 

edoQ the cafie of Thomson r. Liddell, 2d July 1^12, piBher, ic « 

nftwhich tint csBse does in no respect justify. The only ^^^^ 

fsmt decided there wad, that action or diligence may noBtoPw. * 

ynmd is name of the partaership, and may also V^o^'s^!Mmaf9 iHii^ 

oecd ^^^dmt the partnership by its firm, thobgh per-^^'^ 

ami eiecDtioii, of course, is possible only i^ainst the 

iilividiialB. in that case, it was admitted that An- 

inwLiddell vas a partner of the cohipany of John 

lifUdland Company; and, althougfa he maintained 

tbat it was a fo]«gn company, and that : their funds 

woe at HaBfiaa; no reason could be assigned why he 

iImbU Bot be suli^ect to the diligence affecting all the 

pvtners of &at company, of which h^ admitted him- 

fldf to'be one partno*. 

• It cnly remsnns to take notice of what has been 

Med with regard to tiie fpost^office bonds.- In the 

^f place, from some late proceedings in the Court of 

iarticiary, we observe, that the bonds are now made 

9N^ In the trial of Henderson (9th June 1828) 

tke boad produced was for the specific sum of L.80,;. 

farwbicbhis cautioners were bound. With regard 

ttfAose postmffice bonds which may still remain in« 

'tfoite, we do not know of any case of this kind hav-^ 

Ag ever been tried, otherwise we think the same 

dijectioDs mS^t have occurred upon a charge by 

mmary diUgence upon these bonds. But as the 

Cbwa debtors'stand, in this country, in a very difier-^ 

(tt litoation irom otber debtors, we suspect no Crown 

Utor eirer could have had any interest to try the 

^ntkni, as the Crown has such summary and effec- 

taal means of recovering the debts due to it, by a writ 

rfezteiit, or Exchequer homing. 

hafdiQladeCy Crh^eiie, Meadamhanh^M'Ken%ie^ 
'MiDya, and Newton.-^^^e are of opinion, in an^ 
'v^ to the question remitted to; our consideratii^n, 

II 



114 OBG»IONS OF THE. ISh. VI. 

^ w Jw* *^*' **® l^tt^^ P^ honung, and the charge given there- 
Fieher,' &c «. oii« in name of John Syxoe, cashier of the Perth Uniou 
Sy me, Ac Bank, to the suspenders^ proceeding on the bond and 
Tuie to Pur. relative stated account, founded on bjr the bank in 
AiMNiMfy Duu^^^ process, were legal and competent 
p^^*^ The ol^ectioxL to their legalit7, n^ade by the bus- 

penders, is. founded on the .assumption that no dili- 
gence by homing can competently issue, unless the 
sum for which the charge is giv^ be fixed and liqui- 
dated, either by an actual decree of a court, or by that 
implied decree, which is held to be interposed to a 
deed, registered in virtue of a clause consenting to Us 
registration, for the purpose of summary diligeoce. 

We do not think, considering the practice of the 
Court, and the understanding of the country for many 
years past, that this proposition is strictly true. 
Were it indeed so, we do not see how homing could 
proceed on any registered, bond but one constituting 
of itself a pure and liquid obligation to pay a precise 
sum. But there are various classes of bonds on which 
summary diligence has in practice been allowed to 
issue, where the sum for which it is to proceed is left 
undefined ; and in several of which it could not pos^ 
sibly be otherwise, as the obligation respects debts to 
be afterwards contracted, and the amount of which is 
uncertain and contingent. It is impossible, insudi 
cases, to imply, from the registration of the bond, a 
decree interponed to it, constituting the precise debt 
for which homing is to be granted, while the bond, 
itself leaves the matter undetermined. Accordingly^ 
the. holders of suck securities have only been enabled 
to obtain the benefit of summary diligence, by intro» 
ducing into the deed.a consent by the granter to hold 
a subsequent statement, ascertaining the amount of 
the debt, to be a sufficient constitution of il to the 
effect of authorising the diligence. Thus, in bond^ 
for cash*accounts, or for the balances which may turn 



Ha n. COURT OP »Ea8KKf . 115 

Mi to hefyi'by bank agent*, there- is usually inser- ^^^^^J^ 
tsi, m tiibfr vras in the }n*esent ease, a clause by Fisher, &c. v. 
iMA file ol^gantB consent that A stated account, ^^""^^^ 
ndeoDt by sn officer of tbe bank, aball be held to TMetoPur. 
eiMtftiite tbe balante diie^ £6 "Que effect of authorising Summofy duu 
rAfij^ for payment. . ^'*^' 

Arto tfaeadtnission of this niKMleof conbtituting the 
Mt^it HID be ob^rved that It doer not r^t merely 
m^eaasent of tbe obUgant;' fc^, lit virtue of the 
iqgMnitioii, tfiei% 18 ah impl!^ Amfi&e of the Court 
htapaned to the bond, bearing, that the stated ac- 
awt shall be held a (Constitution of the debt, in so 
&r aif to be a sufficient authority for diligence. Now, 
bldftig'Chat tbei^ is a decree in th^e terms, we see 
iftfting anomdousf,' or contrary to principle, in the 
Gbnik'sg^andng, by a deliverance ih the Biil-chamber, 
irirarnnt for letters of horning, on production of an 
otiMet of the bond, and of the s&ted account, which 
it%aa previously decreed to be Sufficient to authorise 
«fi warrant/ It is a mistake, we conceive, to sup- 
pMl Ihat the Warrant is a constitution of the debt. 
It is the stated account which constitutes it, aUd the 
*ttwit follows as a consequence; 

R aj^^ear^ from ' the report of the deputy-keeper of 
ftrd^ffiet, that it has not been the practice to record 
Ae^tated account ; and, in the view wd take, it does 
ft* Mem to be necessary. There can ' be no consent 
^Kglrttatidn in the stated account itself; as it is pre<* 
|bW by the creditor ; and were there a daase in the 
M'onaelrthig to its re^stration fc^ the purpose of 
dttgttee, it would be inconsistent with the stipula- 
^ there, that the stated account shall be held of it- 
^k saffideni constitution of the balance due. The 
aMi^^ement would then be, ' not that the stated ac- 
OB«M sboald constitute tiie debt, but the decree inter- 
P*fed t5 it, in virtue of the Jpegistratidn. 
Batthe suspenders argue, that the practice in these 
112 



116 DECISIONS OF THE Na it 

^^^^J^^CBses is not inconsistent with their doctrine as to the 
Fisher, |-c «• necessity of a decree ; because in bonds for cash-ac- 
Sj me, j^c. counts, or thoBc by cautioners for bank agents, there 
Titu to Pur. is always, perhaps with the solitary exception of the 
s^iimnar^ 2){ii. present casc, a sum specified as the limit of the obli- 
**'^ gation. There is, it is said, an express obligatioa 

come under to pay this definite sum, and, therefore, the 
decree, interponed in virtue of the registration, con- 
stitutes this as the debt due, although the creditor may, 
at his option, restrict his charge to a part of the sum. 
We can, however, in so far as regards the jtt'esezif 
question, see no principle for distinguishing betwiict 
limited and unlimited obligations. In the ease of 
bonds for future and contingent debts, the limited sum 
is not admitted to be due ; for, indeed, nothing can be 
due at the date of the bond. It is specified merely ts 
a maximum beyond which the obligation is not to ex- 
tend. The consent that diligence may iasue for that 
sum is not absolute, but conditional. It is only in the 
event that, from the future advances by the credited, 
or intromissions by the bank agent, a balance to that 
extent shall be due. 

The suspenders found upon the particular words 
usually employed in a cash^redit bond to constitute 
the obligation. But, even looking at these words alone, 
and laying out of view the whole tenor and object of 
the deed, it is plain that they create no absolute obli-^ 
gation to pay the maximum sum. The obligation is 
alternative to pay either this sum, or, in the option 
of the obligants, such part of it as the person who is 
to operate on the account shall value for, or draw out, 
beyond what he pays in ; in other words, that the 
obligants shall only pay the maximum, if the balance 
due on the account shall amount to so much. Notr, 
the production of the stated accouilt is at all events 
necessary to constitute this balance, even where equal 
to the limiting sum, and no diligence can issue on the 



Kal7. C50URT op SBgSiPN. 117 

boDd without its productioii. Were it otherwise, there « i>ec. i828. 
would be no use at all for the provision as to the stated y^^^Zv. 
Jtxoont The creditor could have no occasion for a Sjm^j&c 
to admit it as sufficient to authorise diligence, ruie to Pur. 
having the ]x>wer under the bond itself to^^;^^ ^^^ 
charge for the full sum, be might, at his option, re-^^<^* 
strict his diligence to any part of it he thought pro- 

But, farther, it is. not true that the benefit of sum* 
saiy diligence has been confined to the case of those 
knds in which the obligation is limited to a certain 
definite sum. As an instance of the contrary, we may 
tt&x to bonds for the payment of a composition to 
cnUtora. In these, the rate of composition is no 
doubt mentioned, but there is no enumeration or 
q^edfieation of the debts on which it is to be paid. 
The hood contains no:thing to limit the extent of the 
liability to any definite amount, or by which the sum, 
for whidi any individual creditor is entitled to charge, 
on be at all ascertained. Accordingly, it is absolutely 
necessary, befcre diligence can issue, that there be 
prodnced, not only an extract of the bond, but a 
certificate by the trustee, shewing for what the credi-* 
tar hag ranked, or a docmqent sufficient to establish 
aad liquidate his debt. 

Now, the competency of summary diligence on comr 
position bonds is not disputed. Indeed, it does not 
rat on practice merely, but on the authority of an ex- 
pRss decision of the Court, in the case, 11th February 
18Q9> Brown and others v. Campbell and Company^ 
latluscase, as appears by the report of it in the Faculty 
CoUectiDny the question was fully considered, and the . 
ttme objection, supported by the same arguments now 
and hy the suspenders, was unsuccessfully insisted on. 

We think there is nothing in the observation of the 
Deputy-Keeper, that he has never heard qf a horning. 



lis Z3»€9BHOtr& OF THE Mb. VT. 

aDec.i w^. iwoeeeding <:to a regtcrter ed imid for a easb-cmliKp 
F4Bher, ^. ^ taining an obligation of unlinrited amount, because ' 
sy me, Ac. ^j^j^ ij. improbftbl^ «Mit waf sufik bond^ver «3^a|dd« 
Tiib to Pw. In the case of boil4s ^or bank agMts^ also, We^ 
lSlfm^^xH«.i* has very rarely o^eurred tbirt tfee «aUtio«eiia' 
iy#;M». failed to limit the extent ^f <lielr re^pon^ibimjr* 

obligation on the agent kimfidf is fiatii»Jl]fy aitd w« be« 
lieve always, left unlimited ; but we conceive it VMd4 
be strange indeed^ if, on aecMUt of this dffieMiice, 
summary diligence itiigkt issue m svcti abond^agsalMt 
the cauttonera, while it should be inoompetent agalnal 
the principal debtor. The ttMonk ^y the deputes* 
keeper may not have henrdof a horning ^^iaot tbtf 
agent for a sum exceeding the amouttt of ih/b ^ibl^pa^ 
tion of the sureties, maymost naturaUy b^ <&At4w 
Bank Directors generally take care to keephia \ mkm t m 
within the sum which is secured by the eaiutipiMirs^ 

The necessity for an ordinary action in the eam^toi 
bonds for factors, tutors, f^qd curators, atid^>l^er vi« 
milar cases, where the obligation is unlimited, id easily 
explained. There is no consent in these that a eerti^ 
fied account, made up by the creditor, or in any way^ 
shall be held to ascertain the balance due; and as 
there is no mode, fibort of an action, fiw coniltitMtfa^ 
the debt, the clause of registration aikthoi4sing lettars 
of homing, which may \te found inaiieh boods^ pMsi 
necessarily be inoperative. i: 

Lord IHtmUfy.r^l understand the ^^tilesiion putM 
the consulted Judges, in this ca^, to be eoiifiaed en* 
tirely to a preliminary objection taken by the auspM^ 
ders to the letters of horning raised l^ the €*hai^^^«rt> 
and to the charge proceeding thereon. ^[%is Qij^itton 
does not touch the pleas of the suspendeiti eiQ tbeiiie^' 
rits of their case, but merely relates to a ttutlerf of 
form. It i^ limited to the competenoy,. and i» iti$ 



lip% in point »f QQtfDjpetmgri ef the lettars of * J^^;^ 
hnaig and ebarjge givea thareon ; and thus iuvQlves Fisher, && «i 
drir the coDsideratioii, Whether, in point of form, the ^T^e^ 
Aigon iBCTe estkled to do finimnary dilige^^ in the ruie^Pur. 
wmoet morted to by thein» or should have made^,,,^ j^^ 
tteir daims the subject o£ an OTdinary action ? ^^^• 

I mef bfrfnion that the letters of homing and the 

Amgd were eompet^at, aiid» therefore, in, thi» sense^ 

ItffL I cannot distingniah, in this respect, between 

MmDaiy diligence being resorted to as the fonn in 

vliidi a daim ia made by the creditor, when the 

MOQBt in the bond is Hmlted to a certain maximum, 

«Qd sBttunary diligeno^ being done^ when, as in the 

|iwat case^ tlie amount is not limited to any {nrecise 

Hodnnun. The competency afaummary diligence is 

tijhaittcd and established in the former case. J tinuk 

itnmst be eijuidly competent, and on the same prin* 

c^ m the latter case ; and that to decide this ques- 

tioD efterwiae woiild imply more than a doubt of the 

Iqplity, in ]M>int of competency, of summary diligence 

iQ seveml dasses of cases in wfaidh this method of 

cnfbrong the obligation in fSavour of the creditor has 

beea genially i^eaorted to in practice without any 

Mbt<tf its cwipetmcy erer having been suggfestrf^ 

wept in one v two cases, in which, such doubts 

briiig been startedt the fprxnal objection has been re* 

peOed by the Court. In this very case, when it came 

befiwe the Second Division in the Bill-Chamber, on 

tkellthof Feln-uary 1824, I flhould have been of 

fpnioi^had I thought summary diligence incompe^ 

Untaad iUegalf. that the bill should have been passed 

vMi^ caujttom 

Bat it IB imneeessajry for me to enlarge on the tea* 
HRS vhioh induce me to think the letters of horning 
iiiiliwge competent, as I subscribe to the reasoning 
Mtained. in the i^inted opinion of Lords Glenlee, 



ISO I»BaB8K>NS OP THB No. 17^ 

^^J^^ CHogfetie, Meadowbaiik^ Madcenzie, MdlwyH, aid 
Pisiier^fc.*^ Newton, whidi I have had aa opportimity <xf per- 

Syme, ^c /using. , . . 

2Tu/« to Pfir. Lord CarehaH$ei — ^I coiicQr in Hhe epintmur giren 
Ifumfli^ry z>ai.^7 Lofdft Glenlee, Omgletie, Meadowba&k, Mackai^ 
gence. ^ie* Medwyii^' Newton, and by Lovdf PitoiiUf^ timt 

the letters of homing and dharge, in this case^'were 
competent and legal. In p6cimi«ry obt^^ionay y^keik 
diligence is ra^ed Sn virtue of a datEse of registratjon, 
the sum for which it proceeds toust be^ certain.- But 
it is immaterial whether the sum be rendered certain 
in consequence of its amotmt being specified in the 
instrument containing the clause, of registration, or. 
in consequence of a consent tn^ that instrument timt 
the amount shall be fixed in a certain manner. In the 
latter case, the maxim, Certum est quod oertum reddi 
potest, directly applies. Were it otherwise, diligence 
could not be raised on any obligation, however de- 
finite, when the amount of the sum to be paid depend- 
ed on any future contingency. Such a rule would di- 
minish the utility of this important process i and, ac- 
cordingly, it is inconsistent with the practice of the 
. country, and the decisions which have. been referred 
to. I do not think the distinction is well founded 
between obligations in which a maximum is fixed and 
those in which it is not. Both are equally illiquid; 
and diligence can proceed on neith^ unless the mode 
of liquidation is settled by a consent in the instru- 
' ment. If it be so settle, I aeelao reason why ^dili-^ 
gence should not proce^ equally. on both. I4o not 
think that it was necessary^ or competent, in this case, 
to register the stated account. It is not the resodi 
of the liquidation, or the evidence by which it is ob- 
tained, which must enter the register, but the mode 
of liquidation which parties have agreed to adopt wh^B 
the time of payment shall arrive, . : * 



ih,w. couiRT OF sssisbN. in 

Oiamnkig . eoasidemlioii of the case, trith the ^ J^^^ - 
tim ofimMBi the Judges of the first Division jstated, r^exy^w. 
tbttheyiemaiBed of the same opinion which they^^ "^^*^ 
MknaoAf Btveanily exfWBOod^ In eonformity with ^.j,;^ ^ p^ 
tfe ^pakni of the joijority of thcr whole Jndgies, the 2^^^^^^,^.^ ^^ 
Cart lepdied Hie objeetion to the cempeten<7 of the^m^. 
Jctten.eC herauigaiid the cbai^ ; but altered the in- 
tei^CDtor.Jii 80 far a» it eonjoinedv the two pracesses 
ia^itate; and i«aiitted to the Locd Ordinary to hear 
fvties <m the meritB.* 

hfdElcUnj Ordinaiy. For Suqpenden^ Dean.^ Fae. 

fiicmcrrif) &LGen. (Hope) More. A, Giffbrd^ Agent. 
Ffr€bargera, Jeffrey ^ Jameson. WiUiam Murray ^ 

W.&Ag^t. D^CIak. 



SECOND nirmiON. 

N0.XVIIL % December \%9». 

ALEXANDER 

agam9t 
SEYMOUR, ftc« 

imiDiCTiONv-x^SkrAT. 10 Obo. IL e. S8. — An ad^ 
9&MtkmJr€mike eentenee qfiieo justices inflicling 
^pemky mubr Me statute is incompetent, without 
Bfnmoussippealto ike quarler ^essbms i 

finmitt, wko was mam^tt-of the Theatre at Olaa* 



* A flindkr judgment, in regard to the. title, was pronounced the aame 
^-^^^aasi^S the Caahien of the Fife Bank v. Ebenexer Andenoa 
«i«aeip, and ia the cM^rtte Leilh^BMik «ii AiddbaU Soott 



MA im<^SKiS& OF TBB ^9.1% 

'£!!l!I? gaw, braughty with ecmcoorse of the procwotor^ml 

Alexander «. « pn»eratioil fgUBrt 

Seymour, ^ p^j,^^ in terpis of the astute lOiifaso. IX, c- 88,% 
juriMdicHon. the peQiUtieB theiein iapoqed i|poii aif pa«oiie i^ 
/!l^^«/2lL^ dull perform pUys 09 other entPiPteinnMfntg fiy -the 
etege^ whidi haw not nceimd the I^irdCSDKiaberhDp^ 
licenoe. The jnatioeehaviBgAdTisBd thepstitioB^^ividi 
.objectiom «»d aasvere, and xoroidered the yrao^.ift- 
fliptedt^peBelty, iat«rmiof theetetuta, AlefMnkt 
advocated the. cause; but the Mqpoudest.olyeDtedto 
the competencjr of this proceeding, in respect tbat^ Iff 
tiie Gth section of the statute 10 Geo. 11. c 88, the 
only competent court of aj^peal from the senteaoe of 
two justices, ia prosecutiona under that statute was 
the quarter-sessions. 

The IxNrd Ordinary {nronoimeed the following in- 
terlocutor: — * Finds the advocation not competeat, 

* and dismisses the same, and decerns,' &c» Ncte^^ 

* It appears to the Lord Ordinary, 1^ That, consider- 
' ing the peculiar nature of the penal jurisdictioB 
' created by the statute, the intention of .the statute 
' must be held to have been, that the judgment of tbe 
^ quarter-sessions should be without review by tke 
^ Court of Session. 2tf» That^ this being the case, tbe 
' statute must, agreeably tp the decisions in tbe post- 

* horse cases (by which the Lord Ordinary h<4i}s luifr- 
^ self bound) be held to require that the review odf 
f the Justices shall be Igr the qn^rtfO'Teessicna Oidy/: 

The adv(N(a^ r^^faim^ ami jJea^^td^^^ihifig 
but an express dedaraticm in a statute i^ suffifi^ 
to take away the jupsdictian in|peren( ia thsi /So? 
preme Court of reviewing the sentences of all in- 
ferior judges ; and there is no such clause expressly 
declaring that ah advocation or suspension shall not 
be competent in the statute upon which the present 



Win. GDCTRT OF fiSBBioar. isar 

wAmkkU. A ware dedanitibp Aat the jiiJgicnt ^.y*' y 
6ftfie^[MrtaMeMoitt, or oAer inferior trHmnal, shall ^j^qI^j^ 
Irinii, Ib Mt sufficient ; BochasaH r. Towart, 10ChS'7»ouv&c. 
Mtfril VmfM&r. TS47); Ckttlirie v. Ciywan, IWkBecjJ^^ll^ 
MWfJIW-. voce Jiw^idSrffa^, Ap^ 
ft Anfif FtMidl^ Insoraoce Sodetf , 401 Bee: 1617. 
Vtkejnisdktkn of the Ciotirt of Sesdioii k not dto- 
fBftflr csDdiided, it must be eompetenl te BAtoetHe di- 
Mdjr fiMB Ae jtnigment of the two jnstieed witilout 
png imt to tte qimrter-eeBabBS ; es the deehuration' 
^^aatute,*ihaAUAsSlBMrDB^ the 

fKtf to appeal from the dedsion bf the justices to the 
^nrter^sessions, does not make it imperative en them 
tD do so, hat is only pamissire, allowing them either 
to qipeal tbere, at to advocate in Ifce ordinaiy way to 
teOiNtttofSessMo. 7%e cases nzider the posthorse 
^ aiia (Ifin I?. Mair, 7th Jnite 1M9, aod dbe o^heni 
(hsdh leCerted to) do not apply. 

Tlie nspondent oMmeped-^Tbt oidy qvestion be* 
S»o^ Cdnit at present is not whelker (Jbejiirisdietic^ 
of flieCoort of Session be altogether excluded, and its 
iBkrent power of review of the judgment of the quar- 
tar-scttMins taken away, hot whether it be competent to 
iheeate to flie Court of Session' at once from the 
jri^ment of two justiees without appealing first to 
tk qearter^oessions, ta dirscted by the statute ? 

Thefitkseetion^Aestlitute has directed prosecu* 
tioQi to be faranglit for the penalties in two ways, viz. 
Afar by action or summary petitSon in tiie Court of 
Bttristt or Justidmy, or in a summary mamier by ap^ 
l^fmg lo two justides of peace ; abd^ i& the latter 
«Wit, it k dedared that ^ it shall and may be lawful 
*filr^4kt pcrty aggrieved by their judgment to a^^al 
^ the 4(Arttt*8eSBioiis, vhose judgmeut shaU be &uiL 



14M DECfiSIONS. OF: THE Ifo. }». 

d^. 1898. There ui ho question at preaent about the meaniag of 

AiextDderv. ^^ ^^^ woids, VIZ. whether the finaiky of the judg* 

Seymour, &c ment of the quarter-eessioas * excludes the review of 

juritOcHtMu the Court of Session ; but it is quHe plain that die 

Tl'a^^ leave given to appeal to the quarter-eessipns, and to 

them alone^ excludes any other immediate reriew of 

the judgment of two justices when the prosecution is 

brought before them ; and that the cause cannot be 

carried from them directly to the Supreme Court 

without passing through the quarter-eessiojns. The 

oases on the post-horse duty acts are q^ite decisive ; 

eide Mill t^ Mair, 7th June 1828 ; Cook v. Mill^ ITth 

May 1829. 

The Court (Lord Alloway dissenting) thought the 
advocation from the sentence of .the two justices in- 
competent, in respect that the party had not appealed 
to the quarter-sessions, as directed by the statute. ; mod 
that it was unnecessary to determine, in the present 
process, whether or not the Court of Session had any 
jurisdiction to review a judgment of the quarter-ses^ 
sions. 

Lord AUoway — ^I have condderable doubts of tbis 
interlocutor, and they are founded upon the reasons 
that the Lord Ordinary has assigned in his note in sup- 
port of it The ]x>8t«hor8e duty acts relate to the 
matters of revenue in which this Ccmrt has no/inbe- 
rent jurisdiction except what is conferred on itJby 
statute. Accordingly, in the present statute on that 
subject, 4 Geo. IV. c. 62, the power of review is ei^ 
pressly taken away from the Court of Session. I there- 
fore think that the judgmeints under the former BCt» 
which did not allow the power of review, except lA tbe 
precise manner in which it was permitted by the sta- 
tute, were right. But it becomes a very diflferent 



nk. m: court of session. 125 

fi^ftio* when we isterpret a similar dause in a sta- « '^^^ ^^^ 
We like the lOfli Geo. II. c. 28, whidi relates to^j^^^^ 
miUBts m whieh this Court has an inherent juris- Sey^uir,&c 
dictioD at oomnion law. jurMMUfiu 

Lord Gknlee.^l agree in thinking that there is ^^j^J^ ■[ 
graft deal in the distinction taken between c»3es in 
wUch this Court has n<it inherexit jurisdiction, except 
what is conferred by statute, and those in which it has 
teonmfoa law jdfis^tion ; biit it rather appears to 
me that the present case falls under the same rule as' 
we foand to apply to the statutes about the post-horse 
Aities: Hisre is a ne'V^ 'offence created by statute, aiid 
anew jurisdiction, and forms of process created, alto« 
gether independent of common law. The pursuer 
gels his dioioe of two modes in whiteh he may sue for 
&e penalties ; and, if he takes that of summary af^H*- 
otion to two justices of peace, leave is given to ap- 
peal to the quwter^essions. Now, I think that, since 
the legislature has pointed out this way only, it must 
be taken, even although the ipower inherent in the 
Cimit of Session of reviewing the judgment of the 
quarter-sessions may not ultimately be excluded. I 
always proceed upon the supposition that the applica- 
tion to the justices was competent and proper to be 
entertained by them. If it appeared es fade of the 
complaint to be otherwise, e. g. if the petition to them 
coniplaiQed of tilings not included in, nor prohibited 
^the statute, then I should certainly hold that we 
nnght advocate on that ground, mid dismiss the pro* 
ttSB; bat that is not the nature of the objection in 
fte present case. 

LortI PUmillff. — If we were called upon to deter- 
»fe Ae question raised by the advocator, and on 
^ch the Lord Ordinary has expressed an opinion in 
Ws note, whether the jurisdiction of this Court l?e ah- 
"oltttely excluded by the terms of the statute, I should 



186 DECT8I0NR OP THE No. IR 

^^!y ^^ mucA difficulty, and should be sowjr to decide it 
AkxMider «( without more consideratioii. But I thiidc that we are 
Sey mour, Ac> properlf Called upon to determine at present only 
jmitdMmu whether this particular advocation be competent ; ibk$ 
/i!l M^^ is^ whether it be competent to come to tl&is Court at 
once without taking an appeid iirst to the quarter- 
sessions ? And OB this question I havB formed the 
same c^miott with Lord Olenlee. 

TbBeLardJug^43ericoiiearf^ 
lee and Pltmilly. 

Their Lwdships, therefore, * in respect that the ad- 
' vocator had not appealed to the quarternsessions, 
^ found the advocation incompetent, and in so far ad- 
*- hered to the interlocutor ; but foimd no expenses 
• due: 

Lord Ovdiiuny, Madcmxie. Act Dean qfPoc. (Mxmcrltff) 
MoiOAih. AlU Sol. Gen. (Hope) Cockbttrn^Moir. Me». 
HamUto^y W. S* and Geo. Ihmhv, W. S. Aoents. F. 
Clerk. 

V. 



FIRST DIVISION. 

N0.XIX. 9 December izas. 

BLlNCairS TRUSTEE 

againet 

ALEXANDER ALLAN and Company. 

Bakkeupt.— 4STAT. 1696, e. 5.^1. An ewtrofrndieied 
(ffer of composition kaviiigbeen made bjf hamkmpU^ 
on condition of all the etediior^ qgpeeing iheee^ 
wiUdn a limited period, found that creditors who 



!|i.]9. COUWr OF »J»8IOJr, MtT 

iy, to mrse etOitled to enter into arrangemenfs tpith BUncow^s 
He Umkruptajbr payment of their futt debts, it'^'^^^^^ 
haimgheen jHTo^tkat iwieof ikecredUorshaid ^ — 
mede separaiesettlemente with the banirupts. . s£m,i^^ 
ILCre^ior^ im a bam^ being also the ordHnafi^bimk' 
en of the debtor, and as such discounfing Ms biUs, 
ssdpiaeing the amomU to the credit (tf his cash^ 
soDsmO, having, upon an order Jrom U^ -debtor, pre* 
iented hf one i^Ae cautioners in the bond%Applied 
fart itf the cash aeeomU in extinction ^ an install 
nest of the bond seoeral months b^fi^e it hfcame 
isiyMdthe debtor haning, within afewdoffs^fUr,. 
home baniruptf-'^fimnd that such payment woe. 
wt m the usual course ^business^and therefore re-, 
dkoftfe under the act \^^. 

WiUUM &sAi Heniy Hitioow, sUk-ioensers in Lon- 
da»kenDg jGukd ia ldS5» made an offiar of a compo* 
aitioo of 5b. per pound on their debts, ^ provided evety 
' aditoE whose debt exceeds IrJM^ shall accept the 
' aviie within one month.' Alexander Allan and Com* 
pSQr, creditors to the extent of LiiOO, agreed by their 
mndafa^es to thie offer on the oondition proposed. 
AH the creditors* however, did not acquiesce ; but at 
logtka BetUement wM obtained ^ arrtogements with 
tke coefitors individnall jr. 

mUan Blincow applied to t2ie defenders Alexander 
tSm and Company for an advance of LJWOO^ to en* 
AkUm to eiMnpl^e the settlement with the creditors^ 
mi to caminence business fat Bdinbivcgb* He. offered 
tt gita«a.bMil Jbr tile ^uilB i«id £tfr tfa<i debt of L.5^ 
diebjrWilUam and Henry Blinixmr. This^ after some 
matt ymd sBcej was ageeed to by the defenders, who 
admeed the sum ^f- L-SMO^ and rciedved.^j bond,. 
%Mi^-Wjttiaia Blineow and Us^binthfln John and 



IfiS' DECISIONS OP THE No. 19/ 

3 Befr 1828. Valentine, in the English forrn^ fiUrttthig the transac- 
Biin^ow's ^i^^* The bond was for L5000, but redeemable ott pay- 
2^^«^^-ment of L.2500, by three instalments of L.83$. 6s. 8d. 

* each, on 4th October 1820» 4tii April, and 4th October 

f23S,^ ft. 1827. From the sura so advanced, the debts of WiU 
liam and Henry Blincow were settled, and the conipa* 
ny discharged. 

William Blincow then commenced business in Edin- 
burgh under the firm of William Blincow and Com- 
pany. His cash and bill tranteistions were all nego- 
tiated with the defenders as his bankers. He lodged 
with the defenders the bills granted to him by his 
customers, which were discount^ when presented, 
and the amount placed to his credit in his current ac- 
count, upon which he ictrew as occasion required. 

The first instalment of the above bond, payable 4th 
October 1826, was paid when due. 

About the beginning of the year 1837, William 
Blincow's bill transactions having increased very much, 
the defenders hesitated about discounting beyond a* 
limited extent ; upon which his brother Valentine 
wrote the defenders, agreeing to be responsible to the' 
extent of L.500 ; and, on 25th April, John and Vd-' 
lentine Blincow addressed a letter to the defenders, 
guaranteeing any bills that might be discounted by 
them for their brother William. Upon this guarantee 
the defenders, in the month of April 1827» discounted' 
various bills to the amount of L.1270. 

On 7th May 1827, William Blincow Sent an order ' 
for L.200, and requested that his account currasit 
might be debited with L.8S3. 6s. 8d. being the amount^ 
of the second instalment of the bond, due 4th April 
preceding, which waa done upon an order for the sum 
by William Blincow and Company being presented 
by Valentine Blincow on 8th May. 
Different sums having been paid in to account of 



B^ML' COURT OP SBSSION. H» 

Ymm BUMMm, the balaiice in Ms favour at 14th '.^tw" 
liqrin7 waa.Lr.84a Of that date, a draft fojr.BbwT . 
LJB8L 198. 4d. was preseiHed by Valeiitiiie Blincow,^^^^/^- 

fbiWreii tliak the sum might be placed to the ere- . 

Atf thehHHU wtiieh was done. . By this transaction ^^g<, 5. 
(kefidlaaumBtof thebiHid* with interest, was pa.id 
tp, and the bond itself was delivered to Valentine 
Blttcew. 

WiUJam Blineow and Company having failed, their 
cilite were saqueatrajted on 30th May 1827. 

n^ tro^iee <m the seqaestcated estate brought the 
puttitt action of reduction calling for production of 
theabovelxmd^and of the various bills which ha4 
bemdiaoounted by the bankrupts .with the defenders 
in April and May 1SS7, and the. checks granted. by 
ttebsiikniptsto t)ie defenders.for the sums which.had 
been applied in extinction of the second and third in* 
idiiieiits of the boad ; and conisluding that the bond 
tits^iA be reduced to the extent of. L.875, being the 
ti&ienee between tbe original debt due the defenders 
bf William and Henry Biincow, and the .coipposltion 
« thst debt which the defenders had agreed to acpept, 
vkidi difference neither WiUiam . BUncow .and Com* 
pnqr, nor William Blincow .as an Jndivjidual, were 
bomd to pay ; aod ther^ore conchiding for, repetition 
tf.tittt sum ; and farther, concluding for reduction 
tf Uie iadorsations of the bills discounted with the de- 
faiders, the proceeds of which bad been applied to the 
pgmnt of the second. and third instalments in the 
bQ9d».a&d the cfaecka.wsbioh had beon given foi^ t|piese 
ppftsatftr-these being all. within, sixty days of the 
bMoniptey, a^d pfiy^nent oi the last instalment, that 
bang mde several mouths before it was due* 

Pieaded in support of. the actioiit— 
rl) .Tb^, defenders having, by their, mandatories, 
"ped the miasive agreeing to accept of the com- 

I 



ISO DECISIONS OF THE No. 19. 

3 Dec 182& position of William and Henry BlinMW^ debt^ Hiejr 
Bitocow'8 ^^ ^^^ entitled to plead against &ifl miaiive bjr way 
Trustee «. Ai. of exception. It must be binding upon tliem until iCia 

regularly reduced ; and tbey are, thenfbre^ bound ta 

^^ll^'^-^g disdiarge their debt upon receiving payment 4>f tbt 
composition, and are not entitled to take the bond for 
the whole debt to the prejudice of the creditors of 
William Blincow and Company. 

Although the bankrupts may bave paid some of the 
creditors more than the stipulated oompoaition, this 
does not void the composition-contract, but gives the 
bankrupt a right to innst for repetition of the over 
payments. This point was decided in the cases of Jon-* 
ner v. Caddel, 15th Feb. 1822 ; and Arrol v. Mont- 
gomery, 24th Feb. 1826. The pursuer is therefore 
entitled to repetition of the L.875, for the benefit of 
the creditors of William Blincow. 

II. The indorsations of the bills and checks, withiii 
60 days of the bankruptey, for the second and third 
instalments of the bond, are reduciUe under the 
act 1696, e. 5, as being an indirect mode, out of the 
common course of business, of giving the defendetsan 
undue preference, to secure payment to them of the 
bond. At all events, these indorsations and checks are 
reducible to the extent of the third instalment in the 
bond, which was not payable for five months after the 
8equestrati(Mi, and after the payment of that instalment 
The payment of this diird instalment can never be 
viewed as a bona fide payment of a debt in the com- 
m o course of trade. The bills which were du* 
counted, and from which this pajrment was raafde, 
were many of them not payable till even after Ae 
term of payment of the bond ; and, therefor^ the 
parties entered into the transaction being obvious- 
ly in the knowledge of the approaching bankrupt- 
ey, and for the purpose of giving the defenders a 



Jh 19. COURT OP SBSSION. ISl 

PhIbmbs am the other CMditors. The aaUdpation 3 Bec^utt. 
oflfefijBKDl affbrfc legal preeumption of the kDow-r]^!^^^.^ 
ta^iCAeappfoadiiiig bankruptcy ; aiad the ii^^^or-^^^^^^ 
of long dated bills, and drawing diecks for the ..«-.^-. 

a mere collusive device between the22J*[J^^^ 
the defenders to evade the statute, and 
^radudUe. 

iUlongh Mr Bell, in his Commentaries, il 399v 
mpf * That operatkms on a catrent-aceount between 
or with a banker, either in cash or bf 
of UUs!, will be effectual n6twith8taiHl<^ 
' ii^ the statute/ yet, he adds, ■' wherever the drw 
'cBBfltaaees iadieate collusion, or a contrivance ta 
' enie the act, or notice of insolvency, the transac-* 
' tioB vjll be chaUei^eable ; as where Ihe bill given in 
' pqrmeiit is of a distant date, which proves it to be 
' security rather than a payme&t ; or where the bill 
' ii given, not in paymetit of a debt due, but in anti- 
' dpation of what is not yet payable.' These rules 
fUaly $ffily to the facta of the present cas^. 

Ammrs d for the defeiadCTs — 

L The agents for the defenders only agreed to the 
aBjiositioii upcffi the conditions contaizied in the offers 
^Aidi was, that all the creditors ^ove L.20 diofuld 
V^ to the arrangement within one month of the 
<iite at which the offer wae made. Tlie offer was 
M agned to by the creditors; and the debtors 
^MUwith eadi of them on the best terms the;f 
^"Ushtain. The defienders were, therefore, at liberty 
^^loBasd fuU pf^naieat of their debts; the contract 
^^M aa end in oooaseqnence of the non-fulfilment 
<' the condition upon which die offer of composition 
^ nttde and' accepted. 

^nitte.waano aathnrlty to dasdiarge granted by the 
ieteaders, and no discharge was given. The debtors 

12 



ISS DECISIONS OF THE No. 1^. 

3 Dee. 1899. : compoimded with thdr sevwal creditoss as tliey beirt^ 
BUncoir*! could; but HO discharge .was granted upon general 
uJ^Co.^^ *^™^®» as in the case of a composition^contract re-* 

-— ^ gularly carried through. 
^!!tm^o.5. After a debtm has received a regular discbarge of 
the debts due by him previous to his bankn^^, he 
may undertake a new liability for payment of itboae 
debts upon a new promise to pay» and the creditor 
18 entitled to accept of such promise ; 1 Cookes^ c 
10, $ 7 ; Whitmarsh, c. 16, $ 10. This is the law of 
England, where the whole proceedings took place ; so 
^ that, even if there had been a discharge, the debtors 
might have entered into a new agreement for payment 
of their full debt, 

II. The indorsations upon the bills sought to be re- 
duced were granted in. the course <tf trade for bona 
fide considerations, the bills being regularly discount- 
ed, and the proceeds entered to the credit of William 
BUncow and Company, in their account-current with 
the defenders ; and the checks were pres^ented to the 
defenders in the usual course of business, and im- 
mediately entered to the debit of the cash-account. 

When the bills were discounted, and the proceed^ 
carried to the ca8h««coount, it was the same as if the 
money had been actually paid over to the bankrupt ; 
the bills became the property of the defenders, and 
would have remained so if bankruptcy had follow- 
ed an hour afterwards, having been obtained for a 
bona fide onerous consideration; Bell^ i« 207; ii. 
128; Carstairs v. Bates, BeU, i. 207; and Sar-. 
geant, BeU^ i. 208. The bills were all regularly 
discounted in the same way as if the money had 
been directly paid into the hands of the bankrupt, 
the proceeds forming a fund upon which he was 
entitled to operate by drafts the moment the amount 



HK Ml COURT OF SESSION; ISS 

VIS phnd to Mb credit. The transactions trere, there- ^^^^^^^ 
ion, k the regular course of trade. If the bills had Biincow's 
|nM» tiiey would have been lost to the defenders. JS^^Ca^' 

Fqrments in cash are not struck at by the statute 

tkdU on. It can make no difference^ in the present J^g^ ^ ^ 
I CM^ fliat the defenders, in their professional capad* 
^sslMnika:*9, keld the funds from which the payment? 
I mflt^made. A creditor is entitled to receive pay« 
I mat of his cfebt from his debtor oi) the very eve of 
Ubnptcy. The defendlsrs weref entitled to discount 
% banknipf 8 bills, and either pay him the proceeds, 
ecnry them to his credit; and they were entitled to 
nmve froin the bankrupt payment of thdr bond ; 
od the payment of this debt, by orders on the cash* 
•KDUt, which the bankrupt kept with the defenders, 
vvJQst a payment in cash, to which the act 1 696 does 
vt apply. > 

The second instalment of the bond was not paid till 
iftff the term of payment had arrived ; and, therefore, 
te'tfaat payment there can be no legal objection; 
Hotber can there be any objection to payment of the 
AM instahiwnt. If the debtor had fun^ to pay this 
Mtriment before the stipulated term of payment ar- 
rived, he was entitled to do so, and the defenders were 
c>tiQei tb receive pajonent. He might have drawn 
«at the sum at his credit, and applied it in payment 
^nj of his debts ; arid he was equally entitled to 
do^BO itt'extinguishing the debt due upon the bond* 
^ Aefenders were not under any obligation to re^ 
^ paiJtDent of this bond, even before the term of 
PT^enC arrived ; and the mere fact of bankruptcy 
^snvo^ taken place soon afterwards, cannot render 
*e^ payment objectionable. There is, therefore* no 
P^uM IB law for reducing the checks by which the 
'^tottpt tjperated on his cash accounts, * 



1S4 DECISIONS OP THE No. 19. 

3 bee. 1828. The Lord Ordinary reported the case to the Court ; 
Biincow's and added the following note : — * The Lord Ordinary 
kT^Co^^" * does not think the pursuer's claim for repetition of 

* the L.875 well founded. The agreement by the 

st^^vm €,6.* defenders to accept of the composition was clearly 
^ conditional; and the condition having bailed; it 

* was not binding upon them. They were, therefore, 

* at liberty to include their full debt in the bond they 
' afterwards took. 

* The other question, arising from the payment of 
'' the second and third instalments of the bond, is at- 
^ tended with'more difficulty, as these payments were 

* in effect in a great measure made by the indorsation 

* of bills which were not payable for a considerable 
*« time afterwards. Had the defenders not been the 

* bankrupt's ordinary bankers, with whom he was in 
' use to discount his bills, there would have been lit- 
^ tie doubt that the transaction, although in the form 
^ of a discounting of the bills, and an application of 

* the proceeds, by order of the bankrupt, to the pay- 

* ment of his debt, would have been reducible, as fall- 
' ing under the spirit of the act. It is said, however, 

* by the defenders, that, being his ordinary bankers, 

* they discounted the bills in question in the course 

* of trade, and only applied the balance which stood 
' in his favour on their running account, to the pay- 
^ ment of the instalments of the bond, in consequence 
' of his order to that effect ; that the pursuer has not 

* averred on the record that they were in the know- 
' ledge of the impending bankruptcy, and is not en- 

* titled to assume in argument that they acted on sudi 

* knowledge. 

* It is not necessary, however, to the operation of 

* the act 1696, that the creditor shall be proved to 

* have been in the knowledge of the impending bank* 



Ha I9L OCH/RT OF SESSION. 135 

* T^fujf or guilty of fraud in accepting of ttte fiecib- ^ ^^^ ^^^ 

* li^f; It is enoqgli if the debtor intends to favour uuncow.s 
'InvMd to give him a preference over his other'^X"*^^*--'^'- 

7. ^^ . - , . Ian and Co. 

' CTQUtors. Now it seems^ from the circumstances, : 

•|nrttjr obvious that the debtor aieant to give 8uch^^^^*[^g ^. 

* ajwe&rence, if not through £avour to the defenders, 
'itkflrt through favour to his own brothers, the 
' oatioBers in the bond ; and ihat one of them, Va- 

* lentijie Bliocow, who personally managed the trans- 
' sctioB as to the payment of these instalments^ was 
' snare of his brother's situation, and taransacted the 
' vjiole business for the purpose of relieving himself 

* sod the other cautioner. Indeed, if they were able 
' to fulfil their engagement under the bond, they had 
' tbe real interest ; and the effect of the payment was 
' to secure them a preference. In such circumstances, 
' sad considering that the third instalment of the 
' knd was not payaUe for some months afterwards, 

* tlie Lord Ordinary Ihixdcs it questionable if the 
' transactions can be said to be so clearly in the usual 

* coQzse of trade as to form an exception to the rule 
' of the statute. He has, therefore, thought proper 
' to i^ort the case^ that the opinion of the Court may 

* be obtained.' 

Tbe Judges, on advising the cause, concurred in the 
opioion expressed by the Lord Ordinary in regard to 
tbe first conclusion of the summons, that the accep- 
taace of the offer of composition was conditional ; and 
the condition not having been purified, the defenders 
were entitled to claim their whole debt, and to include 
it in the bond. They were farther of opinion that the 
payment of the second instalment of the bond, after it 
Wame due, by transferring the value of the discount- 
ed bills to the cash accoimt, and obtaining an order 



1S« DECISIONS OP THE No. 19. 

^w^li!!'* thereon for the amount of that instalment, was a trans- 
Biii)cow*8 action in the ordinar7 course of business with the de- 
kTandTco.^^" fendcFS, as the bankers of the bankrupt, and, therefore, 

was not struck at by the act 1696 ; that the law on 

?iS*l69^ 0.5. this point, as laid down by Mr Bell, must be consider- 
ed as settled. But they considered the anticipated 
payment of the third instalment, so long before it was 
due, a> struck at by the act; and therefore reducible. 
' I^ Court, accordingly, assoilzied the defenders 
from the conclusions of the summons in ri^gard to the 
L.S75, and the payment of the second instalment of 
the bond. * But find, in the circumstances of the case, 

* particularly the situation of William Blincow, and 
^ that the third instalment of the bond was not due 

* till the 4th October 1827, that the payment of 
' L.8S8. 6s. 8d. made on 12th May 1827 by means 
< of a check or order, was not legal, and is to be 

* considered as an evasion of the act 1696: There- 

* fore, reduce and set aside the said order and chedc ; 

* and find that the said sums are to be replaced to the 

* account current between the parties, in the sanie way 
' and manner as if the said check or' order liad never 
^ been granted ; and decern and declare accordingly.' 

Lard Newtm, Or^ary. Act. Skene, IFibon. J. PaH^ 
eon, junior, W. S. ikgent. Alt Dean i^ Foe.- (Mon* 
creiff) Sandfbrd. JUan Sr Bruce, W. S. Agents. D. 
Clerk. 

T. 



Ifa^flOL GODKT OF.8BBBiQ]!r. 187 



SECOND niFlSION. 

No. XX. 9 December 19a». . 

ALEXANDER COWAN« Trustee on the Seques- 
tnted Estate of Abchibald Constable and; 

COHFANT, 

againH 
maOSi, LAN6DALE, DIXON, and BROOKS. 

Bakkbupt^-Stat. 1696, c. 5— Fobeign*— ^ hOl 
foffoble at M^, remiUed by a merchant on the eve 
^baakn^ptcfi to a bamker^ wiA whom he had a^cur- 
re»t aeeomntf and directed to be approprkOed to a 
tpetial parpote, hoeing, been applied by (he banker^ 
totto thepwpote directed^ but to the liquidation 
^ U9 general hakause, hdd, in a Question between 
ik banter and Ae trustee on the eequestratedeetate 
tfiie bankrupt^ to be a payment t^ cash not redu- 
ta^ by the act 1696. 

DAated whether the act 1696 etribee at remittance* 
ffbSU in eecurify made to England by a iScotch 
merdiaU within 60 days qfbankruptcy. 

Mmos Constable and Company, booksellers in Edin- 
*B^ were in the nse of transacting business with 
Mcnn Dixon, Langdale, &c bankers in London, in 
4e foBowing course ^-Constable and Company depo- 
sed with Dixon and Company long dated bills, upon 
•IttcredU of which the latter accepted the drafts of 
the fonner ; and when those drafts became due, they 
were provided for, either by remittances of Constable 
w>d Company, or by Wxon and Company discounting 



. I 



138 jmcuaom of thb nd. m. 

'v^^lw^ part of the deposited hills. These transactions were 
Cowan o. of great extent, and were continued without interrup- 
Dix^^ tion till the period of Constable and Company's bank- 
Bankrupt ruptey by sequestration on the 10th of February 1826. 
F^eiT*'"*' On the 11th of December 18S5, (sixty days before 
the d<ite of the iieqnestration) the balance of eash jMud 
and received by Messrs Dixon and Company amoun- 
ted to L.ia6. 6s. Id. in fkvour of Constable and. Com* 
pony; but, at the same dafte, Messrs Dixon aii4 Qom- 
pany were under acceptances for Constable and Com- 
pany to the extent of L J3JS0. I6s. 6d. The depo- 
sited bills then in their hands, due mostly at distant 
dates, amounted to L.13,024. lis. 7d. 

J^tween the 11th of December and the date of the 
banktuptcy, Dixon and Company came under further 
aooeptances, and made payments on account of Con- 
stable and Company to the amount of L.6696. 9b. fid. 
During the same period. Constable and C6n^»ny 
remitted to Dixon and Company cash or drafts upon 
London bankers, principally long dated bills, to the 
wiount of 1^18,054. Ss. 9d. 

In thi9 sum there was included One bill for L.750, 
drawn by the Royal Bank of Scotland on the Bimk of 
£ngland at sight; which was remitted on the 18th 
January 1826 by Constable and Company to Dixon 
and Company, in the foUnwing letter: * We now en- 
* close Royal Bank on Bank of England, sight L,750. 
' With whidi, please to paj^ bur bill to Sir Walter 
' Scottt due at your heuse om the 18^l6th inat. 
^ for same amount,' &c. At the time that Dixon 
.and Company received this remittimce, they were am- 
siderably in advaaee to Constable and Company in 
cash, and under very exttenaive acceptances in their 
favour. In these drcun^ances, Dixon and Company 
having received the bill ob the Bank of England for 
L.750, remitted in the above letter, obtained payment 



lltt.«. COITBT OF Wmi&». 149 

d%wai appyed tiie proctcds^ no* in vetirtug the bill '^^^v^ 
dTGMtable alid CkMnpuiy to Sir Walter Soott, bntcoill^^ 
m fifoidfttion of tiifa gviDiBnl bahmce staodiiig in their ^'^^|^- 
tooks j^ttinet OonetAbl^ and Cotnpeii^, the prooeedB :0<»iib:ii|iA 
ki^rpbttd to their credit ; and nothing further took |^;^^ 
itatt rekfive to this ttaosaettoli at the time. 

Ob tfie faihir^ of Conat^la and Company, l<Hh 
Febracy ISfiB, IMxon and Company were crediton 
m cenaeqnenee of paymeifts XKf cash end ascoeptanoes 
doly t^bred to fhe amount of L.l€,110. 19b. 8d. for 
vUch sum they claimed to be ranked ae creditors 
vpon the bankrupt estate. They held, in security of 
ttis balance, the long dated bills remitted betweaa the 
11th of December and the 10th February, and others, 
to the amount of L.1A,024. lis. 7d. 

In these circumstances, th6 trustee on the 8eq[Ues- 

tatod estate of ConbtaMe and Company at first threat- 

enel to demand repetition of all the bills which had 

ben ranfttal in Becnrity b^tweeti the 11th of Decern-* 

ber and the date of the bonkruptcy, on the gfround 

tiiat they were struck at by the act 1696, c. 5, as se^ 

corittes granted within sixty days of bankruptey. He 

ifterwafds, hbiferetf departed from this demand a» to 

ill the remittmiceif which had been made in the ordi-^ 

nvyamrse of business, and restricted his chum to 

the aboTe mentioned bill for h;7S0, whidi had been 

spedaOy appropriated 1^ the bankrupts to the pay* 

BMntoFlhe bill to Sir W^ter Seott^ and had been ap- 

p>U by Dixon and CosqMUiy to the liquidation of 

the general baianee. 

Blxcm and Company applied to the Court by peti- 
tion and comfdaint i^nst tibe judgment of the trus« 
t«e sustaining bis own cl^m for repetition of this 
tcmittanoe. The Lord Ordinary, before answer, al<^ 
lo^ed the opinion of English counsel to be taken on 
^ rnvtaai cose stating the circumstances above describe 



140 lASCfiSIONS OF THE JSh. m 

>B #ciy ^^ and inqiiirfaig, on the assumptioh that flue quertton 
Cowan 9. as to the apinropriation of the Bank of Bngland hill 
Dixoo^ foir L.750 falls to be regulated by the law of EngUiid, 
BankrftpL Whether the appropriation of the bill wouM be aos^ 
Fi^^!^^ ^' tained, or whether it must be disallowed, and nestatii^ 
tion of the proceeds ordered to be made to the trustee, 
in respect of the terms %)i the omittance ? The an- 
swer to this query, was in the following tenns>-^ 
^ Taking for granted that the question in this case is 
' not between the holder of the bill payable to. Sir 

* Walter Scott on the l6th, but between the trustee 
' of Constable imd Company and Dkxxm and Compoay, 
^ I am of opinion that Dixon and Company ase,. as 

* against the trustees of Constable and Company, en-*' 

* titled to set off the amount of the bill against the 
^ debt due to Dixon and Company from Constable and 
' Company ; that is, in other words, Dixon and Com- 

* pany were bound, as between them and the holder 
' of Sir Walter Scott's bill, to apply it in liquidation 
^ of that bill, and, as between them and CoBStid^le 

* and Company, were entitled to apply it to the gene^ 

* ral account 

* The case in favour of ConstaUe and Compuiy can- 
^ not, I conceive, be strcmger than if Dixon and Com- 

* pany had promised ZK)t to i^ly it to the genend ac- 

* count, which promise would be without cottsidera^ 

* tion ; see Lechmere f . Hawkins, % Esp. Gxa. N^ P: 

* 626 ; Atkinson p. Elliott, 7 Term. Bep. 876 ; and see 

* Chalmers v. Page, 3 Bam. and Aid 699 ; Cotobn 
« V. Welsh, 1 Esp. 378 ; Taylor v. Okey, IS Vm. 180; 

* Semb. contra; Staniforth v. Fdlows, 1 Mar^ii^i 

* 190, 16 Ea^. 189 ; Kinneriy v. Hossaek, 8 Taunf. 
< 171. I have some fear that I may not rigbtiy ua^ 

* derstand the question intended to be siibmittodrtd 

* me. I hope, therefore, that, if I am in eismri 4iid 

* case will be returned, so that I may endaoiiRpltf^ito 
' rectify my mistake' (Signed) ' B. Montagu.' 



Ha 9(t dOURT OF SB86ION. 141 

AeLoid OrdiiiaiT; on adTiting tlie process with ^ ^y 
Hk ^phnMi and havltg heard parties thereon, found, cowui «. 

* Alt the petitioners w«« entitled, in a question with ^^ ^*^' 
' Hk respondent, as trustee for the creditors of Ccn^ sitnkrupi. 
^sbMeaoDd Company, to apply the proceeds of the^JJ|!^^'' ^ 
^ Un for hJJBOto the genend bolance owing to them 

' by ConstaUe and Company ; repelled the respon- 
' defit% daim to repetition of these proceeds ; and or- 
' Used him to rectify the scheme of ranking accord- 

* is^.' His Lordship added the following note s — 
^ DM the act 1^6 apply to the petitioners, the Lord 

* Okdinary thinks their right to the* bill in question 

* voald not be saved from challenge, as falling under 
' tiieeiception of biDs taken in the ordinary course of 

* tende ; but he is of opinion, though' the matter is 

* ht from being free ci difficulty, that theact does not 

* feach the case. Hie bill in question was an English 
' Idl; the petitioners, to whom it was transiBitted, re- 
' tided and carried on business in London ; and the 

* particular business which they did for Constable and 
^ Cumpany was all transacted tiiere. The bill was 

* sent to them in London to be used there ; and, though 

* indersed in Scotland, the assignation was not eiiectual, 
' oreompleted, until H was recdved by them. In such 
' ciraunstances, the Lord Ordinary concaves, that the 
' pKferenoe which the petitioners have acquired, by 
' placing the proceeds of this bill to the general ac- 
'Mmt, 18 not reducible on the act 1696. The re- 
' Prospective bankruptcy of the Scotch statute cannot 
' sperate against an Bnglish creditor acquiring a pre- 

* ferenee in Eingland, any more than the English re- 

* tN»peetive bankruptcy can have the effect to void 

* the da^^ence of cieditors used in Scotland, to attach 
' tke pioper^ of an Bngtfah debtor. In the case of 
' BnMar and Company t^: Pafaner and Wibon, 85th 

* VAMary IStt, it was found, that diligence used in 



14S I1ECISI0N8 GP TH&> No. M. 

sBeci^iL < Scotknd, before th« date of the 42aBimissiou of te^ 
c^^0^ * raptcy, wag not so aflbcted ; and tbe same principle 
Dizcm,4tu < muyt regulate die pre0»t caae« The TalidHy of the 
Bankrupt ^ preference faUci, thereforej; to be determined l^tthe 
Fw^^'^^'* law of JSn^Iand ; and* firom tke opinion -obtained, it 

* doe$ not ee^n to be liable to objectie»»' at leasl m a 
.' question with the respondent. 

' It is argued, however, that altfaou^ tberaipiai'- 

* dent might not be able to compel repetition of the 

* proceeds oi the bill by an action in Eoglandf yet^ 

* when the petitioners come here, and daim under the 

* sequestration, they eubjecat tbemselves, in so £ar, te 
' the Scotch law, and that dividends may be refnaedl 
^ till matters are placed on the footing, that the act 
^ 1696 was to opiate. But the Lord Ordinary dees 
^ not see how the mere drcomstance of a claim being 

* made h»e, for the balance of the debt, should affect 

* the applioation of the law ; and that it does not ap- 

* pear jto him to be a fair inference fr<xn the Slst sectc 

* of the bankrupt act. By that section* it is declared, 
' that, in case a preditor shall, after the first deUveraace 

* in the sequestn^tion, acquire a preference, kgal or 
^ voluntary, on any pr<q)erty of the bankrupt, sknated 
^ beyond the jurisdiction of the Coutt, he shall be 
^ obliged to communicate this before drawing divi^ 
« jlends. Nx>w, it seems a £eur iirference that, io order 
' to draw dividends, he is not bound to commtmieate 
^ e prfference which be has acquired out <tf Stotiaad, 
' beli(»e tfaefiret deliverance. . • < 

' The Lord Oi^dJAary will «nly further observe, that 

* the objection of the respcmdent is not strengthened 
^ l^ considerations of. equity. Had the oontents of 

* the bill been applied as directed, the creditoiss^st 
^ \ng^ would^hitve derived no bepM^fil* It is the seme 

* thiqg td thenii wlieither thepetAtkmers viok for 
' L.75O more, which they would have be^ot entitled 



Ibtt. COURT OF SBS8ION. 148 

« toift had thejr iqiplied the proceeds in taking up ^^^ 
' Sir Walter Scotf s bill, inatead of paying in so IwcoIIi^ • 
'(kvowa debt, or the bolder of Sir Walter's biU»^^ 
'jndB foir tlua aum^ as he witt do in consequence oi Bankrupt. 
' Ha lot being piud. But to hxing bade tjbe piroceeds^),!^''' ^ 
' far iuliibation among the credkore at large would 
' be, ID het, allowing them to dmve a benefit from 
' the Buapplkatkn/ 

The troalee rtckdmed, and phathd^Ti» bilLfor 
L750» being remitted to the petiiion«» within sixty 
iKf% preeeding the hanknqitcy of Gonstableand Cott'^ 
paqr, falls within the operation of the act 1696, and 
bmt protected by the exccfition in favour of remit- 
tncBs nuide in the ordinary coursle of cttrnmt truas^ 
nAfmy in as much as it was remitted for a special 
porpoBe, to which the petitioners £ailed to apply it» 
Tkig fuestion must be determined by the law of Scot- 
hni ; and there is no room for any reference to the 
kw of England. The bankrupts were Scotch ; and 
Ur estate is under a Scotch sequestration, in which 
tk petitiooers are thems^ves claimants to be ranked 
itaeditorB to a large amount. It is no sufficient an- 
swer to say that the remittance was an English biill» 
ndf consequently^ that the Sootdi atatale cannot reach 
H»lor tiievemittanoe was the act of a party domiciled 
is Scotland; and the rule that the transmission oi 
BttwUcs la held to be regulated by the law of the 
ovner^s domiciie, or mobilia non.habent situm, is now 
Ufmdy received in cases of baidon^tdy* 

A tiffieoeat understanding wonld enable every debtor 
to evade the operation, both of the finglaah and Scotch 
cnatoucim bankmptey, by ginnttag aecarities, or 
>>iUBg fraudulent trasMferesicea tif pro^^ on the 
^afinsolvency,intheadyofanngkingdom« SeeSyme 
«• ThoBson, 6th July 1768 f^or* 1187). In tbi^ 



144 J^CISIONft OF THE No. 90. 

*.w!^^ ease of Palineu. &c, v. Htoiter and Cdnipany, Sfth 

Cowan «. Feb. 1825, the present qnestion did not arise, and 

i>u <m,Ae. could not oecuT, till the arresters, in that case, sfaoiUd 

Bankmpi. Hoake their ckdm under the commissiou of hankrupt<7 

F^^^'^^^i^ England, when it would faU to an English court to 

decide vhe^r Hiey oould be allowed to do so, and, at 

the same time, to retain the bendSt of their arrestments. 

At all events, the trausfiorenoe whkh was imytained in 

that case was the effect of a l^al diligence, and not 

of a velimtaFjr assignation, as in the present case ; and 

the opferatioQ of diligences forms an exception to the 

general rule of law, mobilia non habent situm. 

' The petitioners oMw&red— The role of law is, that 
the comm&Sioii of bankruptcy in England, or the se« 
questration in Scotland, carries the whole mpyeable 
property of the bankrupt, wherever situated, from the 
date of the te^ of the writ in the former, or the first 
deliverance of the Court upon the latter. This was 
&ted-in the case of Struth^rs and.Reid, and others, in 
which the question was as to the effect of arrestments 
used after the date of the commission of bankruptcy* 
•The princii^e upon which this rule rests is, that the 
commission of bankruptcy, or the sequestration, is a 
legal assignation or transference, which completdy di- 
vests the bd^nkrupt of all his property from the date 
at which it is Ksued ; and it. follows, from the l^ili- 
iiiate a jypUcation of the r4ile^ mobilkt son Imbait situm^ 
that this assignation attaches the moveables of the 
bankrupt wherever situated; But before, the date tif 
the sequestration or ccHumission, the law of the forrign 
country cannot recogaisse a state of Imnkmptcy aria* 
ing out of actffcoimiQitted in another countryj nm^al* 
low a retrospective effect, wliick .is introduced <Hd]r 
by a statute which can have no operatttfn extra ter* 
ritoriiim. Accordingly, the stat 46 Geo. III. c ISS, 



Ho. «». COURT OP SESSION. 145 

(9raniael RomiDy's act) which limits to a certain ^.^^^^ 
the retrospectiTe effect of acta of bankruptcy in Cowan u 
I, is declared, in the body of the statute, not^^^^vto 
#ttleiri to Scotland. The case of Pahuer, &c. v.smnkrupL 
Ailifef and Co. 25 Feb. 1825, is of decisive authority f^,.J^' ^ *• 
Itf A? present Mse. 7%e opiftion of English counsel 
Mtprtqperly allowed to be taken ^or the purpose of 
frorfni^ Aat the only transaction which is chaDenged, 
ordiallengeaUe here, viz. the application by the {leti- 
tioHas of the reitiittaaoe to their general balance, instead 
rf qipropriating it to the special purpose fer which 
it WIS remitted,' cannot be quarrelled by the bank^ 
; nqit, or his trustee, under the law of England ; and this 
if 11 question of English law, because tiie whole trans- 
tttioQ (viz. this alleged misapplication) took place in 
&^d. 

Tke Court was of opinion that the remittance and ' 
ofmtion complained of by the trustee could not have 
been challenged under the act 1^96, even if it had 
tdcm place in Scotland ; and, tfa^efore, adhered to 
dte iaUEriocutor of the h<nA Qtdinary upon that 
gnmnd; without deciding the^ question raised by the 
ptttres, whether the operation of the statute extended 
to preferences granted in a foreign country within 60 
iaya of l)aitkruptcy. 

Lord Glenlee. — If I were satined that this trans* 
setiott would have been struck at by the act 1696# if 
itfaa4 taken plaee in Scotland, I should have wished 
% Biore time to consider the question whicji has been 
QOed as to the effect oi. a voluntary security or pre- 
fcnBce^ granted iq a foreign country within 60 days 
tf lisidtrttptcy ; because, whatever opinion I may have 
^itaei upim it, such a question does not appear to have 
^ yetdecided hiiltn^ims; aithou^ the decision in the 
^ of I^liner, with regard to a judicial preference ac- 

K 



U6 DBdSIONS OF THE No. «>. 

^ w-w* quired bydiUgeDce^niay probablyafford some indieatioii 
Cowan Ok ^^^ the Court would decide such a case when it occurs^ 
Di xon, Ac ualess we are to go back to the old decision of Syme in 
Bankrupt 1756* whichwould require soQie Consideration. Ithere- 
^^;^^^^'lbre do not mean to ezpceta any decided (pinion upon 
thi§ queetion. But I cannot. see how the act 1696 can 
apply to the present transaction at all, even if it had 
taken place in Scotland* A remittance of a bill, pur- 
chased for money at the mqment, and payable at sigbti 
appears to me to be a payment of cash in the strictest 
sense. It is rery true that it wa^ not applied in the 
way directed; but how does that take it out of the 
general rule regarding payments in cash ? Suppose 
there had been no bankruptcy, oould CSonstable and 
Company have reclaimed this sum of L.750 from 
Dixon and Company, on the ground that it was re* 
mitted for a specific purpose, to which it had not been 
applied ? I doubt this very much. Seeing that Dixon 
and Company were at that time in advance to Consta- 
ble and Company more than the amount of the remit- 
tance, I think, in a question with them, they would 
have been entitled to refuse to give back this sum, 
although, no doubt, they could not have kept it in a 
question with the holder of Sir Walter Scott's bill. If 
the trustee could shew that, if the money had been ap- 
propriated in the way directed, viz. to retire that biU, 
it would have come back to the bankrupt estate, be 
would have had a stronger plea in equity, and a dif- 
ferent question might have arisen. But this is not al- 
leged, and cannot be pleaded. 

. Lard AUoway was of the same opinion. The peti- 
tioners (Dixon and Company) have explained the prin- 
ciples which would rule the question of international 
law, which may arise in similar cases of bankruptcy, 
very properly ; but I go the full length of Lord Glen- 
lee's opinicm^ holding that the transaction here com- 



fUbrfflTwoiild ooC ftU vnist tke act 1696» eTen if ',^;^'- 
kWtidunplaee in Scotland. Coww^ai 

Hbwm fixed diat the statute l<$96doe8 not aSeet^^'^^ 
iMittaiicegia1t»<ytijtiiiaiyflgiq!P Qf'trjde; andtheitaninvt 
Mrteegiifwup Ida wliola eaM^wfaenheaUows'thataUft^^''*' 
ttecaefrtwitfiWffH to Dijtoa andCompany ^thiathe 
It days wore miehailaigeable. Nether does it strike 
St ash ftfmesOM*, m4 lK»(bbg 4«( W fiiM? properly 
1 psTmeat df cadi tiiatt a leawttiiice, such as this, of 
s Ml payaWa «f figllf^ if tta J^9l4l$9 tC Sir Walter 
fltot^s Mil were Im the field, he would be entitled to 
■itea qllesHo^ <« tiie dpptppiiatwgk of thi^ opoDejr; 
bit4»apift«o9 of tha Eau^ (MOiUd ia Bvidspic^ to 
M, that there is nothing in that law tp g^v^t ^e 
uffnpiiatimi in a question witii the bankrupts, or 
tkdrtmitea. 

Lad Ordio«TT» Xewton, Act. Futterton^ Alt Dean 
ofFae. (Moncreiff) Rutherford^ Gibsm-Craig. WaU 

*tr Bidcmmy W. S. and ^^i»(»X)rt^ and WmnBam, 

• i^tf. T. Cleik. 

U. 



K2 



148 DECISIONS OP THE No. 21 



SECOND DIVISION. 

No. XXI. S December 18a& 

Mrs DONALDSON and Husbanb 

Mrs FINDLAY AND Othebs. 

Process.— ^^ remit to an accoknttmtbefbre dadng 
' the record^ in an action of count and reckoning, ir 
incompetent. 

Mas Donaldson and her husband brought an actiov 
of count and reckoning against the euratcyrs chosen 
by her brother and sisters during their minority, rf 
whom one had been appointed also factor loco iutorii 
to herself, and against various other persons, conclud- 
ing, for payment of sums of money, as part of her 
share of the effects of her deceased father. Defences 
were put in for the curators, denying their liability 
on various grounds. And a condescendence and an* 
swers having been lodged, but not revised, the 
Lord Ordinary, upon the motion of the pursuers for 
an immediate remit to an accountant, that they might 
have the benefit of his report before closing the re- 
cord, pronounced the following interlocutor : — * Re- 
' mits to Adam Thomson, accountant, to make up a 
' state of accounts between the parties, and report ; 

* with power to him to hear the parties, or their 

* agents, and to call for production of such vouchers 

* or documents as he may consider necessary for en- 
' abling him to prepare the same ; and grants dili- 
' gence at both parties' instance, and also of the said 



Proe9$tm 



Na M. COURT OF SESSION. 14» 

• Adam Thomson, against havers, for recovery of ' ^^^^ ^•2^- 

• sod vouchers or documents.' DonaidBon, 

Ac, 

The defenders reclamed; — and the Court unani- 

momty * recalled the interlocutor of the Lord Ordi- 

* nay, in so far as it makes an immediate remit to an 

* accountant ; and remitted to his Lordship to grant 

* diligence to tiie parties, for recotrering all books, 

* aceoonts, and other documwts, which shall appear 
' to them to be requisite for the full investigation of 

* the case ; and to proceed thereafter in the cause as 

* fo his Lordship shall seem fit/ 
It was the opinion of the Court, that a remit to an 

aeeountant before dosing the record was an inexpe- 
dient and incompetent proceeding. A report thus 
ttbtaiiied coald not be received as evidence in the 
cause; and would, therefore, necessarily tend -to em- 
Wraasultmor inquiry and discussion. If the assis- 
taace of a professional accountant were required for 
enabling the pursuers to shape their averments, that 
VdoM be obtained by submitting the books and docu- 
n^ts recovered by the diligence to the examination 
of an accountant employed by themdelves. 

Xorrf M^KefvAty Ordiiiaxy. For the Pursuers, Dea^ of 

Fac, (MoncrAff) Cuninghame^ Skene. Scait and Ha'tu 
nay^ W. S. Agents, For the Defenders, Fullert&n^ 

Cockburvu JEneas Maebean, W. 8. AgtmU T. Clerk. 



m laiCISIOHS OF THB m.9i 



f'msrmrisiON. 

No. XXII. ' AJ09(!m^X9»: 

JOHN 8IM BANDS 
The P9CK:!tr|iATt>I»lftft)vethi$ 8herfiM?oQH 

|>B04:;l:i».— AtredcA'no^^'^^dvA'r. 6G£0. IV. 0. ISO, 

SECT. 40.>-AJGT OP StDBBUltn', 11 JpLV l««ft 

— 1. le is n<a neogmtfy, vi^gt ^ mbove settim ^ 
Oe Jiidioaiute mt, HnfMtMe ^ ptirfy A» tult)tniag 'tt 
eauie Jhman ktj^rtor «(mo% itk^ m fM^loetmt 
tiUouingifpro^ki»heeitpnmimwd,tkxtit»ihM^ 
appeeo' ex f««fe cfa»l^iU 4hett ht hoi mpeeut^Uff 

e. Apetidim beiiHg pfe^emtfd to a tker^j^ aimin. 
doH as a ptdtm-SMr iff his ebtett^ wui tke iOri^^ 
having aihwed i^ttdni to be gioen in ^ tht 
other procurators, and hamng ^ereqfier pronoun, 
ced an interhUHtdf oUomng a ptbof, and the p^ 
tioner hating presented an adwcaiion under tke 
tdwoedoMSeinlhd statute^/br the purpose if hav- 
ing the ease tried hy ajurjf i^Jbund Oat the sheriff 
did wrong to allow appearance to be made by o&xr 
parties, to the qffbet ^constUuHng a judicial pro- 
ceeding or process ! but that, in comsequence ^^ 
proceedings bejbre the sher^, and ^ interktetOor 
pronounced by hnut an advocation was competent, 
to the ^ffbct qfentddingihe Court to remit the catue 
fo him ipith iHstruefionSf, 



B«.£& COURT OF SESSION. 151 

Thi advocator, John Sim Sands^ writer in Arbroath, ._ ^ _/ 
presented a petition to the Sheriff of Forfarshire, pray- Sands v. Pro* 
io^to be admitted to the office of procurator before the FoTiiuT ^ 

dwiff-court of the county. The following order was 

proDoonoed: — ^ Having advised with the sheriff-de-^c/vooa/ioii. 

* jrate, in respect it is understood that objections lie, ^ i^^ ,^. ^^ 
' and are to be stated to the prayer of the f^^^g^^^Siij%fii2s. 

* petition, by certain of the jHrocurators of this court, 
' the sheriff delays consideration of the petition for 
' fimrteen days from this date, when he will resume 
' consideration thereof, with any objections that may, 
' betFeen and then, be lodged with the derk of court' 

Objections were accordingly given in by certain of 
die procarators, not to the professional qualifications 
«f tbe petitioner, but stating that, on the ground of per- 
sonal aod professional misconduct, he was disqualified 
from beotmiing a member of the court. To these objec- 
tions answers were lodged, which were afterwards 
foQoired by condescendence and answers, and revised 
condescendence and answers. Thereafter, the record 
heiiig dosed, an interlocutor was pronounced allowing 
the parties ' a proof of their respective allegations,' &c. 

Thereupon, Sands, founding upon the statute of the 
6 Geo. IV. cap. 120, § 40, which enacts, * that in all 
' causes originating in the inferior courts, in which 
' the daim is in amount above L.40, as soon as an 
' order, or interlocutor allowing a proof, has been 

* pronoonced in the inferior courts (unless it be an in- 
' terlocutor allowing a proof to lie in retentis, or grant- 
' ing diligence for the production and recovery of 
' V^fen) it shall be competent to either of the parties, 
' who may conceive that the case ought t6 be tried 
Hyjory, to remove the process into the Court of 
' Session, by bill of advocation, which shall be passed 
^ at once without caution, and without discussion ;'---« 



Ui DBCI8IONS OF THE No.sar 

4 Dec. 182a pi>e8ented a bill of advocation, for the purpose of hav- 

Sa^XTp^ing the case tried by a jury- 

¥^T.^ ""^ '^^ ^^ ^^ passed, aad JLettera of advocation were 

: expede. . . 

.^rfwion. It ^^ t^^^ otjccted by Uie respondents, that it was 

^'Ygo^^^o^'^^^P^tent, under the section of the Judicature act 

AotofSed. founded on, to advocate from the sheriff an applica- 

tion to be admitted m a procurator before the sheriffi- 

court. ; 

The Lord Ordinary reported the objection verbally 

to the Court. . . 

In support of the objection, it was pleaded — That 
the advocation was incompetent :-^ 

Firsts Because it did not appear on the face of the 
bill that the claim in dispute was above L.40 iii 
amount, which was necessary under the act of Pariia* 
ment ; and, although the act of sederunt (11th July 
1828) had been. passed subsequently to the time when 
the bill of advocation was presented, and therefore 
could not regulate the proceedings in it, it explained 
the meaning of the act of Parliament to have been, to 
limit this mode of relief to cases strictly of a pecuniary 
nature, which the present was not* 

Secondly^ and chiefly. Because the question depend- 
ing before the sheriff, respecting the admissibility of 
the respondent as a practitioner of court, was not 
truly a cause or process within the intendment of the 
act. It required to be a process between man and 
man, in which one person was called upon to pay, or 
to do something in favour of another, to enforce which 
the authority of a judge was required ; but the pro- 
sent question was not a cause or process in this sense 
of the word. The advocator had merely presented 
a petition to the sheriff, praying to be admitted as 
a procurator before his court; and the sheriff, in 






Vf. SSL COURT OF SESSION; 1^8 

dafiagvpoQ this petitioii, ^xeraseA entirely a dis- ^ ^^^^ ^^^^- 
cRtknary power. He was not acting in his judicial^ganda v Pro- 
hit ID bis ministerial capadty; and no case could ^^^^^^ 

he ofomyei which was more fit to fall under the ^ 

csdosive cogniMnee of a judge^ and less adapted ^^^.^^ 
fir tiie proper province of a jury. It related to Hxe^^^^^/^' 
pmsBioDal and personal conduct of an individual, ^c/o/^e^/. 
eaindng a varietj of circumstances, which it was ^ ^ 
ahsard to say that any tribunal but a court of justice 
could prqierly decide on. It was not merely facts 
which were to be ascertained, but matter of opinion 
with Rgard to the fitness or unfitness of an indivi- 
dual, on aceoo&t of an alleged course of personal and 
professional delinquencies, to be allowed to practise 
before a court, which the judge of that court alone 
could determine, upon a full view of all the circum- 
stances. In the case, for instance, of a member of 
die Faculty of Advocates, or one who was a candidate 
far that office, to whom it should be objected that 
lie had been guilty of some flagrant crime, 'it surely 
woold not fall within the province of a jury to deter- 
niiie whether the individual should be admitted or 
expelled. The Court itself would vindicate its own 
authority, and decide upon the whole circumstances 
of the case, whether the individual was a fit person to 
become one of its members. The present question, 
therefore, was not tnily a cause within the meaning of 
the act, which could be advocated with a view of being 
made the subject of a trial by a jury. 

It was OMwered — ^1. That it was entirely aperver- 
noa of the statute to say that it must appear, ex /ode 
rf the bin of advocation, that the subject in dispute 
Vis upwards of L.40 in value, to entitle the party to 
^ priirilege of it. If it appeared that the interest of 



154 DECISIONS OF THE No. 91 

w!^^ the pursuer did truly amoUuit to upwardis of L.40, thii 
^^^^^ro. ^»^as aUthat was required. 
f"'a*" ^^ Indeed, unless this had been truly the intention of 

the legislature, the act of sederunt had not put a cor- 

^^lim. ^^ interpretation upon it ; for it provided that, if it 
Stat, ^ Geo. IV. ^i^ Hot appear, from the face <rf the bill, that it was a 

c 120, «ect 40. . ' , . ^ , i. ir ^^ . . • 

Act of sed, pecuniary claim of upwards of L«40 m amoimt, the 
ii/ii/y 1828. p^jy might apply by petition to the judge of the in- 
ferior court, for leave to advocate, and, if requiredi 
should be bound to give his solemn declaration that 
the claim was of the true value of L.40 and upwards ; 
and that, on such declaration, &;c. being made to the 
satisfaction of the judge, ' leave should be given to 
* advocate.' And this enactment^ although it could 
not regulate the proceedings in the present case, being 
posterior thereto, proved that, in the opinion of the 
Court, the true intention of the legislature wa^, that 
it was sufficient to entitle a party to advocate, if it 
appeared that his interest in the question did in reali- 
ty amount to upwards of L.40, which, there could not 
be a doubt, was the case in the present instance. 

2. That such a question as the present might, no 
doubt, rest solely between the party and the judgi;, 
who was entitled to decide upon any information he 
might obtain, and without consulting any individual. 
To such a case ah advocation would not apply ; but the 
party there had another remedy. If the judge should 
improperly refuse the application, the party aggrieved 
might present a petition and complaint to the Court 
for malversation on the part of the judge, and abu^e 
of his powers. But, in the present instance, the pro- 
curators before the court had appeared^ and stated a 
variety of objections to the admission of the advocar 
tor as one of their members, and had thus truly made 
themselves parties to the cause ; they were obliged to 



IfcL tSL COURT OF SESSION. 155 



) Ae ftfrins of octort fa relation to the case, and ^ ^^ ^^^ 
bad reodered themselves liable in esrpenses if their op- g^nds v. Pro. 
fsd&m sfaoald prove unfounded. The question had ^^^ ^ 

te become tmly a process, which must undergo all 

fketems of judicial procedure, tad might end in the^JJ*^^.^ 
fimfie of Ldnls. If the present case Was really not a ^^ ^ Geo.ir. 
moae or process within the meaning of the act, the ob- io. 
jeeHon should have been, that an advocation did noti|j^^i828. 
at afl apply to sudi a question, and not merely that 
tte case did ndt come \^ifhin the special provisions of 
fte art cf Parliament. The objection truly was, not 
Aat'die cause wad, from its nature, incapable of advoca- 
6»,but that it could not, at this stage of the proceed- 
\nfij be advocated under the clause hi question. But 
low could it be said, after all the proceedings before 
(he sSieriflr, and llie closing of the record, that there 
vas no process ? Indeed, the cause had^ by the bill of 
idyocation \viiich had been passed, been removed into 
Ae Court of Session, and the parties were now before 
Ae Court upon lexpede letters of advocation. 

It was nothing to the purpose to say that, in this 
Bitter, the fiheriff acted in his ministerial character, 
ifil With diseretiotiary power. The advocator did not 
aB upon a jury to decide whether he ought to be ad- 
mitted as a member of the sheriff-court of Forfar, but 
i&ndy to ascertain the truth of certain &cts which 
M been alleged against his character, and to de« 
tentnne which there could be no better tribunal than 
iJQ^. Inthe casewhidk had been supposed of an 
<i^feftion stated to a member of the faculty of Advo- 
Qto, that he had been guilty of some notorious crime, 
*woald surdybe reasonable for a party placed in 
^ a situation to say that it was due to him to Send 
wA a matter of fact to be ascertained by a jury, 
Tkfe would not derogate from the authority of the 
^<Hirt to decide afterwards (whatever might be the 



150 DECiaiONS OF THE No. 2S. 

^N^Xw^ verdict of the jury) whether^ upon the whole drcum* 

Sands v. Pro. stanccs, he wa8 8 fit person to reipain one of the 

Fo^? ®^ members of the College of Justice. In the present 

— — case, therefore, the pursuer had not gone beyond the 

A(L^iio7L proper jurisdiction of the Court, by demanding that 

e.^i2o^stci^^. ^^^ ^™'^ ^^ ^^® ^^^^ alleged against hun should be 
Act o/sed. tried by a jury. 

Upon the first point, the Court were unanimously 
of opinion that it was not necessary, under the act of 
Parliament, that it should appear on the face of the 
bill of advocation, that the complainer had n pecu- 
niary claim of debt above L.40 in amount. If his 
real and substantial interest in the question amounted 
to this sum, he was entitled to the benefit of the act, 
as had been explained by the subsequent act of sede^ 
runt, pointing out in what way the amount of this in- 
terest was to be ascertained. 

Upon the second point, their Lordships thought the 
present question was not properly a cause between 
one party and another, to which the ordinary forms 
of judicial procedure ought to be extended. . 

Lard Gillies observed — That it originated in a peti- 
tion by the advocator to the sherifi* of the county, upon 
which that judge might, of his own knowledge, and 
upon his private information and opinion, hs^ve, in the 
first instance, decided in any way he thought proper; 
and it was not a matter in which it was competent for 
any third person to have made himself a party. It 
was no more competent for the procurators of court t9 
appear and object to his admission, than it was fof 
any individual in the county of Forfar. In the case 
of a person applying to be admitted as a member of 
the Faculty of Advocates, the form was, to present 9 
petition to that effect to the Court, and the Court then 
remitted the candidate to take his trials. But thuf 



Waa COURT OF SESSION. 15i 

vasnot the form oF procedure in the aldniission of *^^e«^8. 
fncAioDers before the sheriff-courts. There it was gands ». Pro- 
fcjnmiice and the duty of the judge alone to de-^y^^""!^ 
Al If he decided erroneously, the party might — — 
tmUs redress by presenting a petition atid com-^^S^^ 
fUiitto this CoxucL But, instead of pronouncing ^^7 ^^tf ^^o' 
jndgmeot to this effect himself, the sheriff made j4;<o/.90dL 
a onler aDowing objections to be given in to the claim ^ 
I tf die advocator. It was here that the mistake ori- 
potted ; and this order ought to have been recalled — 
farpefsona who had no right to appl^ar, and to state 
djedioDs, could not thereby be made parties to the 
ttuse. 

The Lord JPresident observed — That this was a 
ntter which it was the province of the judge to de- 
dfc upon, and in which he might inform himself 
ktiif way he pleased. If it had been a single act 
vitfa which the party had been charged, such as forg- 
■g of a bill, or destroying a document, a jury 
B^t be a very proper tribunal to ascertain this fact ; 
kt bere a long train of professional misconduct had 
beea alleged against the advocator, and it was the 
fctfofthe judge to decide upon the whole circum- 
Miaoes of the case. And, even although the proof 
i^gfat not warrant a verdict of guilty against the 
JrtrQr, it might be a sufficient ground for the sheriiF 
Wtrfose admitting him as a member of court, if 
ftcre were strong suspicions against him. His Lord- 
4ip, therefore, did not see what effect the verdict of 
^jmy could have in such a matter; but although, 
ni considering the propriety of admitting the advoca- 
tor, the appearance of other parties ought not to have 
•teen' allowed, to the effect of constituting a judicial 
proceeding between the parties, yet, in consequence 
rf the proceedings which had taken place before the , 
Attiff, and the interlocutor pronounced by iiim, it 



158 DECISIONS or THE Na fH. 

* ^^^J^ ^^ become a cause to the eflTect of rradering an adro- 
Hands «. Pro. cation Competent, for the purpose of its being remitted 
fS"''^ to the sheriff with instructions to recal his interlo- 

cutor» and to resume consideration of the petition as 

A^^ion. it originally stood. 

c!T2o^ZlZ' -'^^ Craigie, 0& the other hand, thought that the 
Act qfSed, provisiou lu the statute did not apply to such a oiJBe, 
^ and that the bill of advocation, therefore, ought not to 
have been passed. 

The Court directed the Lord Ordinary to pronotmce 
the following interlocutor ^-<-* Having advised with 
' the First Division of the Cotirt upon the objections 
' to the competency of this advocation, and their Lord-^ 
' ships having heard counsel thereon in their own pre- 
' sence, the Lord Ordinary, by direction of their Lord- 

* ships, repels the objections to the competency of this 
' advocation ; but finds that the proceedings in the in- 
V ferior court, which followed upon the petition of the 

* advocator, are irregular and inept ; therefore, remits 

* to the sheriff of Forfarshire, with instructions to re- 

* cal his interlocutors ; to resume consideration of the 

* petition as it originally stood ; and to make such 

* inquiry as he shall deem necessary for ascertaining 
' whether the petitioner is a fit person duly qualified 
' to be admitted a procurator in his court ; and to do 
' thereafter as he shall see cause ; and decerns : Finds 
^ the advocator entitled to expenses in this and the 

* inferior court,* &c * 

Lord Corekousey Oidinaiy. For the Advocator, SoL-Gm. 
(Hope) Maidment. J. J. Fraser^ W. S. Agent. Alt, 
C0ckbum, Ivory. Ramsay <$• Imriey W. S. Agents. — 
Clerk. 

C. 



* Upon a note being presented for a warrant for extnctlng the decree in/ 
this case^ it was stated for the respondents, that they intended to box a , 
reclaiming note» in respect that the decree was not final, it being mereiy 



&ft COURT OF SBfiSION. 15» 



I^ECOND JDjriSIQJSf. 

No. XXIII. B Ikcmber 1^28. 

M'GHJE AND YOUNG 
against 
HENDEJ^ON. 

FiocEfl&r— Suspension.-*-^ cautioner in asuspen- 
ifrnfjoha has advanced money to carry on the cause 
Ukik name of the suspender^ is entitled to sist him" 
^ as a forty .^ qfier the cjiar^ is suspended^ in 

I ,mifrtogft decree in fiis own name for the amount 

I tf expenses which he has advanced. 



YoTOG was cautioner for M*Ghie in a process of sus- 
pMsion, in which they were ultimately successful, the 
d^ttg^ being suspended on the ground of an irregula- 
r^ in the^ precept The process was carried on in 
H'Gi^e'^ name^ and by his agent ; but part of the mo- 
ttj[ iiecessary for conducting it was advanced by the 
onfioner. After the charge was suspended, and the 
*ctoiu^t of e^^nses given in, the agent took decree in 
Kb own name for the portion that was due to him, 
lod Young lodged a minute craving to be sisted as a 
potjr, and to get decree in his own name for the sum 
which be had advanced to carry cm the law-suit. The 
'J^^ger, who, in the meantime, had obtained a more 
i^cgolar charge against the principal debtor, resisted 



■btekcutor of the Lord Ordinary on the Bills, it not having been 
^P"^^ the Lord Presdent, in terms of the 76th section of the Act of 
^'^omA. nth July 1828. The note was superseded. 



Suapenaumm 



160 DECISIONS OF THE No. 2S. 

*>2!!lif!f *^*®* ®^ **^® ground that there was no evidence of the 
M^Ghie, ke. Cautioner having made the advance, and also that the 
t>.Hender»on, cautioner had no right to come forward now in his 
jPfooMf. own name, and thus to defeat the plea of compensa- 
tion which he (the charger) would now have against 
the principal suspender. He referred to the case of 
Renny and Pla3rfair r. Aitken, 8th June 1811. 

The Lord Ordinary held that the advance made by 
the cautioner was proved both by the admission of 
the original suspender and the certificate of the agent, 
and granted the prayer of the minute. 

The charger reclaimed; — ^but the Court reused the 
note, being unanimously of opinion that a cautioner in 
a suspension is entitled to make himself daminus UtU, 
and to assist in the conduct of the case, and to advance 
money for carrying it on, either in his own name or is 
that of the suspender ; and that, being liaUe for the 
expenses if unsuccessful, he is entitled to take decree in 
his own name for his advances. 

Lord Oidinary, Cringietie. Act Jardine^ Alt Jeffrfy^ W, 
Bell. Jkx. Flemings W. S. and /oA» Whiieheady Agents. 
F. Clerk. 

U. 



IkM. COURT OF SSSSION. 161 

FIRST DIVISION. 

A& XXIV. 9 December 1828. 

MARY COWIE 

agamst 

JOHN FLEMING, 

PiooF,— WiTNESfiL— •/» an ardmany aetionjbr deht^ 
At father and mother of the defender are competent 
. wtmeees ogainBt him. 

Il4.proees8 at the instance of the pursuer, Mary 
Cnri^ against the ^fender, condodiiig for payment 
«f the aliment of a natural child, of which she alleged 
Alt the defender was the father, she proposed to ad- 
te^ among others, as witnesses against him, his fa- 
ther and mother. The sheriff .found that they were 
Ht admissible ; and the defender was assoilzied. 

There^ter, the pursuer raised the present action, 
far reducing the sheriff's decree, upon the ground that 
fte persons above mentioned ought to have been ad« 
Jwtted as witnesses for the pursuer. 

The Lord Ordinary ordered cases to the Court 
' upon the special point of the admissibility of the 
' near relations of the defender as witnesses id the 
* cauae for the pursuer,' &c.. 

The pursuer fleaded — ^That, although a party could 
Mbe called upon as a witness for his near rela- 
^» he might be adduced against him ; Ersk. B. 
w. a il ^ 24 ; Forbes, B. ii. ch. 2, tit. 1, $ 6. There 
^ DO precedent or authority for rejecting the wit* 
iM IB the latter case ; and the onue of proving the 

L 



16« DECISIONS OF THB No. S4 

*v^w^ exclusion fell upon the defender* Formerly, where 
Cowie V. Fie. there was B,penwia testium^ the relations of the pur* 
"^.?_ ®^^^ ^®r® admitted in his favour; and although that 
Proof. practice had been altered, it had never been held ne- 

'^'^ cessary, where such, relations were called against the 
party, that such penuria should appear. In the cri- 
minal court, where there was the strongest induce- 
ment to prevaricate and falsify, the mehM petjurii 
(the principle upon which such evidraice was exclod- 
ed) had, in repeated instances, been disregarded with 
respect to the near relations of the pannel, who Were 
called as witnesses against him; Hume, ii« S32; 
Isabella Blinkthom, 7th June 1834, Shaw's Just. Cases, 
No. 116 ; William Devan, 14th June 1824, ib. No. 117. 
MuUo nuigis, therefore, ought they to be received in 
cases purely patrimonial, and where the pursuer would 
not call for their testimony if he were not satisfied 
that they were not likely to commit perjury against 
him; Gibson v. Waugh, 1541, Balfimr (Mar. 16,648) ; 
Leges Burgorum, lib. 143 ; Thompson r. Stevenson, 
19th Dec. 1666^ Stair (Mor. 16,668) ; Cowan o. Cow* 
an and others, 10th July 1813; BeU cl Bell, 14th 
April 1819, Murray's Reports, ii. 13a 

If ^penuria were necessary to the admission of the 
near relations of the defender against him, that prin- 
ciple is, from the nature of the present case, directly 
applicable. 

It was answered — ^That, according to the doctrin/6 
of the law of Scotland, established from the earliest 
times, the father or mothw of a party was not a compe- 
tent witness against him. For the principle upon which 
near relations were excluded, ob reperentiam persfiBS-^ 
rum et metum perjurii, applied as strongly to the case 
where persons were called as witnesses against their 
relations, as where they were adduced in their bebatf; 
Stair, B. iv. tit. 47, $ 3 ; ibid. p. 717 ; Bank. ii. 646 ; 



UM: COUWr OF SESSION. 169 



tr. Alexandet, S8d July 1700, Fount ^^^^^ 
(IbrAiJOS); Dalziel «• Richmond, 10th July 1790,cJ^lLFie. 
^JKr. 16,780). In the crinainal court, H. had been"^°«; 
I Wi tkat a fath^ who had been called as a witness Proof. 
iglBBt im fen was not obligied to d^one if he wm.^^"^' 
mriOiag ; and he aceoi^ingly did decline ; Hume, ii. 

})e CWf requested the opinion of the judges of 
fltSeeond Division and the Pernmnent Ijords Ordi« 
Wf upon the following queries : — 

L Whether, in an ordinary action of debt, the pur- 
Mr eui examine the defender's father or mother a- 
!|DBBthhn? 

Or, sapposing in the gaieral case their evidence is 
iMfcmDhle— 

1 Whether, in the circumstances of the present 
Mki die de{bnder*8 fisither and mother can be admitted 
nerideKice against him ? 

The L(nid9 AUoway^ Mec^wbank^ Mackenme, aud 
fbhrfHy returned the following opinion : — 

L We think the question must be answered in the 
Amatire, not seeing any sufficient authority or rea^ 
Mia die law of Scotland for exchiding the evidenee 
tf ik fitthe^ and mother of a party, when e^led for 
^ the opposite party in an ordinary ciyU action. 
^Ikr appears no statute or decision to this effect for 
*"Wnig tiem ; and the opinions of our writers on 
^^em divided — ^Balfour and Erskine being on one 
*k,ttid Stair and Bwrikton on iht other. As to the 
^W» of the Hung, metuspetywih which is not now 
>BSn<talso musdi i^egarded as it se^ns anciently to 
w^befti, it a|ypeAn retf weak in a i*wiees of this sort. 
bi>^«ertK»tliat, M budi a process, tiie party himself 
■•f Wfofeed to swear by a n^erence to oath, with- 

L« 



fVitnet. 



164 DECISIONS OF THE No. 84: 

^wiJ^^ out respect to nietus petjUrii ; and it seems very diflS- 
Cowie V. Fie- cult to hold that, for this fear, we should exeltide the 

"™*"^J testimony oi his father or mother. We can see no 

jfVoo/ excessive danger of a father or mother perjuring them- 

selves merely to help their son or daughter to i^esist 
payment of a just debt. Indeed it is to be considered, 
that the opposite party would certainly not call for 
their testimony, if he was not satisfied that there was 
no very great chance of their committing perjwy 
against him. -On the other hand, there seems very 
considerable evil in the suppression of the truth, which 
must result from the rejection of such evidence. There 
are so many things that people may do, without the 
knowledge of any body else, except their father or 
mother, that we think it would be Very undesirable 
to fasten a seal of secrecy on the lips of these rela^ 
tions. Then we do not see, if this rule of exclusion 
were to be adopted, why it should stop at father and 
mother, and not also exclude grandfather, grandmother, 
brothers and sisters, and even uncles and aunts ; — ^in 
short, all those at least, who are excluded, when offered 
as witnesses in his favour by their relation, without 
the consent of the opposite party. But this, it is 
obvious, would be quite irrational, and cause a sup- 
pression of truth to a most inconvenient degree. On 
the whole, then, we think the exclusion of father and 
mother, in ordinary civil actions, is not warranted. 
We are aware that, in certain cases of trials for life, 
the Court of Justiciary has held, that a son or daugh- 
ter ought not, if he or she refuses, to be compelled to 
give evidence against his or her parent, and that a 
child under pupillarity ought not to be allowed to be 
called as a witness against his parent. But we think 
this arose not so much from metus perjurii (since, 
indeed, the young child must have been examined 
without oath) but rather from the consideration that 
it was inhuman and oppressive to attempt compelling 



JkU. COURT OP SESSION. 165 

a grown person, or leading a young child into endan- ^ ^c. 1828. 
ffmg, by his own lips, the life of his parent — ancowieYTie. 
set riucfa many good subjects would feel to be beyond ^^"9- 
ileluDito of their obedience to the laws, and would p^^^^^ 
Ibinic themselves bound to refuse, and would refuse, '*^»^'»«»«- 
inpiteof any penalties which could be inflicted on 
ftoo. We are not aware that this has been held 
to be hw, even in criminal cases, except those of life 
det^L And we do not think it has been under- 
tbbe law in any civil court. 
! II. The answer to the first question renders it not 
leoenary for us to answer the second ; nor would it 
keasjrtogive it an answer hypothetically, because 
tts mi§^t depend upon the ratio upon which the first 
IKStioa was answered in the aflSrmative. We can 
^J 8ay that we rather incline to b^ of opinion, that 
I testium is not su£Sciently made out, and that 
if the £itber and mother be supposed as objectionable 
Ktfaey are, when called by their child, that objection 
wght not be set aside from penuria testium in the 
JRKotcase. 

To this opinion Ziorc;? Cnng^^ made the following 

atttioa; — I fully concur in the answer to query 1st, 

M therefore I consider that it also answers query 

M; which inquires, whether, in the circumstances 

tf this case, the defender's father and mother can 

kezamined against him. I see no circumstances in 

^ case which take it cut of the general question. 

^ oa the contrary^ as the action arises out of an 

^t connexion betwixt the pursuer and defender, to 

''>i4,firoin its nature, there must be few tvitnesses, it 

•to a reason generally sustained by courts of Justice 

to admit witnesses otherwise exceptionable, namely, 

**tlicte may be vl penuria testium. 

Ii^ these opinions. Lords Glenlee, PitmiUy, Core- 
*^^> ind Newton concurred. 
^ the other hand, the opinion of the Lord JuS' 



im DECISIONS OF TH£ lU^. fbi. 

w!^^ ^^-Cifer* waft in the foUowifig tenns )A-Vad«r8taiid. 
Gowie V. Fie: ^^ the fltst querjr to imply that the propOBed wit- 
^^^s- nesses are to be left no option as to giting or witb- 

Proof. holding their evidenee, I cannot, on consideration of 

wune^. the authorities, answer it in the affirmative. 

The law of Scotland^~wliether wisely or not, it is 
unnecessary to inquire-^has, in general, rejected the 
evidence of those who stand in the near d^rriee of re- 
lationship of parents and bhildren to a pursueif or a 
defender, in an ordinary action of debt, either in sap- 
port of, or in defence against, a daim. It also appeais, 
from the authority of Lord Stair^ that a regard to the 
peculiar situaticm in which parents and children stand 
to each other, and the risk of perjury, have been held 
sufficient to pi*event them from being compelled to 
give evidence against each other — it being expressly 
laid down by him, in the passage quoted in the ease 
for the defender, that husband and wife, and parents 
and children, though parties wonld consent, are not 
obliged to depone against one another. It is bo doubt 
true that, in reporting the case of Cameron n. Law- 
son, 18th July 1744, Lord £lchies states, that, though 
the Court had there rejected the evidence of a wife 
offi^red against her husband, they fbvnd that a son be* 
yond pupillarity could be compelled to give evidence 
against his father. But this solitary instance is cer- 
tainly contrary to the authority both of Stair and 
Erskine ; as the ease of Cummin, noticed by the latto 
as a qualification of his opinion, cah hardly be coa* 
sidered as an impeachment of the general ruk. 

In the criminal court the practice, however anonaa- 
lous it may appedr^ has been to allow an option to 
children when offered as witnesses against their pa- 
rents accused of crimes ; and, though sonie instaMcs 
have ocihirred where children, beyond the yran of pu- 
pillarity, have been adduced as witnesses agaiMt their 
parents, there are a variety of cases of late in which 



Jh.». COURT OF SSSSOir. 167 



I widiiii the years of puberty have been re- • ^^^^^ 
JBcH m being incapable of exendsing the option com- q^,^^ ^, pi^ 
frist to them, when, offered as wsteesaea against their ""' g- 
pn^ eitbflr upon oath or declaratkoi. In addition Proo/. 
to tfce case of Beid in 1806, issntibnod by Baron ^^*^' 
Bnttythis mle was applied in the cne of Brown at 
fitagwr, £6th April 182«, Before Lords Meadowhank 
odPiteiiUy; of BIinkthom» 7l:h June 1&24, befoiv 
the Cflort of Justiciary, though Hie h(yy was twelve 
ftus misBvea months old ; ondof Deran, 14th June 
USi It is also stated by Baron Hume; that, an 
tklralof Leaak for fotgety at Aberdeen, in 1818, 
U« Lftrds Hermand and Gillies, his fatiier having 
Ikii offered as a witness for the Crown, it Was inti^f 
anted, diottgh wkfaoutnsuch disposition from the Pror 
tKator, that he might exereiae his option ; and» the 
aitiMSs haTJng declined to be examined, he was witb- 
tmn. Now, though the learned author, in reference 
t» the particular case — an alleged forgery of the fa- 
ther's naaie-*--expre8ses an opinion that the point may 
it9i be eonsidered by the Court, yet, as no opposite 
ietenaiaation has been pointed out of a father or mo- 
-tfaer haviog been compelled to give evidence in a 
triffliaal case against &eir child, the analogy of the 
^Boiaal practice may fairly be referred to in the pre<- 
VBftqaestiMi. For, hoirafrer anonalous the allowing 
wh4ai opAoti may be hdd to he, and however desira- 
Veitany be, by legaalative enactment, eitber at once 
to admit, or altogetliear to exclude, the evidence of p«^ 
i^nitg aai chiUton, wheo taS^oed eitiier foor or against 
<Mkether, it ds very difficult to see grounds for deayr 
higtke option in regard to a dvil suit, which may iui- 
^ve the most important patrimonial interests of a de- 
^Miei,aaillie decisinn of wliidti may periiaps entirely 
'cpend OB the testimony of the witness proposed to !be 
adduced. 



FTilneff. 



168 DECISIONS OF THE No. U. 

» Dcc.i 8 » 1^ j^^^ Q^|. ||pp^3]. to me to be a Batis&ctoy reaacm 
Cowie «. Fie- for obliging a father or mother to give evidence against 
""^ ^' their child, in a case affecting only its patrimonial in- 

Proqf. terests, that reference may be made even to the oath 

of a defender himself. These parties stand in totally 
different situations, as an oath of reference is decisive 
of the whole cause ; while the evidence that may be 
extracted from a father or mother has necessarily no 
such effect, but may be c6ntradicted or affected by 
other evidence, either already adduced, or that after- 
wards may be led in the cause. 

On the whole, I have not seen sufficient authority 
for allowing the pursuer to adduce, as witnesses in 
support of her claim, the father and mother of the de- 
fender, unless they are disposed to waive all objections 
on their part; and, even if their consent should be 
given, I have some repugnance to the admission of 
their evidence. 

When the case came again to be advised with 
these opinions, the Lords President^ Crmgie^ and 
Balgray^ said that they concurred in the opinion of 
the Lord Justice- Clerk ; and Lard GiUies in that de- 
livered by the majority of the consulted judges,— 
Lord Gillies observed, with regard to the case refer- 
red to by the Lord Justice^Clerk as having occurred 
before Lord Hermand and himself at Aberdeen, Aat 
it could have no weight in the decisioii of the present 
question ; because, so far from any opposition being 
made to it, the advocate^epute expressly intimated 
his wish that the witness (the father of the pannd) 
should be allowed to decline giving his evidence, if be 
was unwilling to do so. 

The Cottr#, therefore, found that the witnesses were 
admissible. 



Vk 95. COURT OF 8ESfiI(Hf ; 169 



. Oafinay. Act M^^dmenty WeUh. Walter 
AJgfgoL Alt M..P. Brown^ J. FT. DicJaon, 
Jma Crawfurdj W. S. Agent S. Clerk. 

C. 



SECOND DIVISION. 

No, XXV. 9 December 1%9». 

DONALD MACDONALD 

against 

JOHN MACKINTOSH. 

SuHMAEY DiiiiG£NC£.-— Bill of Exchange. — 
Homologation. — An acceptor of a bUl having 
made a partial pajfment, after summary diligence 
raised hp the drawer, is not entitled to suq)ension 
^ the dil^^ence, on the ground that the bill bears 
the sigmatyre of the drawer by a mark, or his name 
adhibited by a third party, the drawer himselfbeing 
mnoMe to write. 

^iHN Mackintosh signed, as acceptor, a bill for 
JL40, dated 14th June 18S1, and sent it to his brother, 
Angus Mackintodi, for his acceptance also ; and, there- 
after» tobe deUvered hj hjuoa to Donald Macdonald, as 
diawer. Macdonald accordingly received the bill, ac- 
cepted by both parties; and, as he could not write 
UiMelf, his son wrote his father's name as drawer. 
The bill not having been paid when it fell due, which 
vas a year after its date, the drawer raised diligence 
iipoD it Afterwards, the acceptors gave the drawer 
ttother bill for L.21. 98- 6d. signed by one of them* 



190 HECmiOMB OF THB Hh. u: 

•^^^^^^ selvw, vi«, Angus MaddtttAsh, and b$r two «tien. 
Micdonaid «. A neceipt for this biU was written on tibe bock of flie 
Ma ckintod i. original one, in these terms •— * Bdcnrity given ioc 
smmprpDUi.' L.21. 98. 6d. of the within hilL Donatd Maodonsld, 
E/^*. ' **is ^ 'n^k' Subsequently, Angus Maddntosh 
^3-^.^^ paid L.18 to account of the first bill, which sum, and 
the amount of the seeond bill, left a balance of L.5. 
lOs. 6d. due to the drawer, Macdonald. 

In 1824, Macdonahi raised an action on the stecooA 
bill, and obtained decree i^ainst the acceptors ; but 
this proving inefiectual, he recurred to tlM^ diligence 
used on the original bill. John Mackintosh then pre- 
sented a bill of suspension, admitting the statemeot 
respecting the second bill, and the payment by his 
brother of L.13 to account of the debt, but allying 
that the second bill was taken, not in security, but as 
payment pro ianto of the first bill. 

The bill of suspension having been passed, the sus- 
pender further pleaded, that summary diligence was oot 
competent on a bill «t the instance of a party whose 
name on the bill was written by another person ; and 
reference was made to the cases of Munro v, Musro, 
14th Nov. 1820 <not reported, but referred to in BeU^ 
i. 890. note 2) ; Watson v. M'Ara, 3d June-182S ; Ro- 
bertson V. Annan, 27th May 1825 ; C!orrie v. Barbour» 
*26th Nov. 1825 ; Williamson v. Jackson, 9th Dec; 
1825. The second bill and subsequent payment iA 
cash might be evidence of the debt in an wdinny ac- 
tion, but could not support the charge of httmngr 

The charger did not dispute that, with regaid Id 
an acceptance or indorsation by a Mark, or the name 
of one who cannot write adhibited by another, sum- 
mary diligence could not competently jMrooeed on tiie 
bill, unless the aolceptance or indorsation were ac- 
knowledged by the debtor. But it was contended 



Vk Vk eOVRT OF fififittON; m 

tet«]ttol||tctiaa did ant ^^ipljf to the caae of the •Di^.i«» 
tefvttr cpeditoryin whose name dfligeace is >^^;>f«tidmir« 
WOMk c. M'lntyxv^ fid Deo* 18S6 ; and that, ip-HadoiitoA.* 
kptukaaHy of thisi tha £aels adimttad oa the reeord»^s^H,„,^^^. 
ni^tkat the bill was signed aad transmitted by ^^^^^j^^ 
Mpwdrr, for the purpose of helag delivered to the<*<^^i^ 
dwgar; and, fttrther^ ^at the security hill (if not 
aho die L.13) was given by turn and his brother 
fihefaeatly te the diligsaosi towards satisfaction pf 
their ehljgataoa to the charger^ hy the hill in question, 
aMwated to coaa^H^ aidcnowledgment of die char- 
p^9 right to use sumniary dUigenqe; and this itself 
wm Mflkient to validate that dttigence, if otherwise 
ipa to the olgedMn pleaded. 

Thfe Lord Ordinary pronounced the following in-^ 
tcriocutor : — * Finds that the bill charged on is signed 
'bfs X, designated to be meant for the name of 
' Osaali MttedMaH^ the charger^ by his name being 
' aiitteBat the ereesi Finds that^on the back of this 
' VA, vhieh is waepted by the suspender and Angus 
' IfMkiatudH -there is« receipt for a bill for L.31. 
' ft. ML giren in aeeurity of the first motioned bill ; 
' irhich reeeipt is signed by a x» designated to be the 
' changer's «Kk> ^ a isubseription ' Donald Macdo- 
"sald, his x mark:' Finds that, when the charge 

* im given on the first mentioned bill, the present 
' wpensten waa oietfe^ wherein 4be bill checj^fedon 

* kadiofitted to faaine been gMiited to IXmald Macdo- 

* nald ; that the foresaid setond bill Was given to him ; 

* tet a payment of L.13 had been made to him by 
' the other acceptor, Angus Mackintosh, and it was 
' nid that L.5. 10s. 6d. only remained due, which 
' WIS offered in the suspension to be paid : Finds, 

* therefore, that said first mentioned bill, though 

* only signed by a X, was recognised and acknow- 



178 DECISIONS OF THE Ho. fU. 

9 Dec. 189& < ledged to be a bill due to the charger, and no olbjec- 
Macdonaid v. ^ ^^^^ ^^ made to the summarjr charge, more than if 
Mackjntodi/ i the WU had been tndjr Bubscribed by Donald Mac- 
SmmaryiM-' donald, with his name at length : Finds, therefore, 
B^fEjt- ^ ^^^^ ^^ '^ incompetent for the suspender, after such 

* acknowledgment of the bill, and procedure thereon, 
' to turn round and object to Hhe bill, and the diligence 

* done thereon ; and that he is barred from so doing, 
' although otherwise it might have been a competent 
^ objection to summary diligence, that it proceeded on 

* a bill signed by a mark : Finds that, as the second 
' bill for L.Sl. 96. 6d. was expressly sidd to have beea 
^ given in security of part of the first bill, and has not 
' been paid, the suspender k not entitled to be relieved 
^ of the obligation in the first bill : Finds the letters 

* and charge thereon orderly proceeded : Finda ex- 
' penses due to the charger.' 

The suspender having reclaimedt /A^ Court ei^pares- 
sed an unanimous opinion in favour of the princii^ of 
the interlocutor; but, being satisfied that the Lord 
Ordinary had been led into a mistake in finding (what» 
indeed, was not alleged by either party) that the bill 
bore a cross or mark as the charger's signature as 
drawer, they so far recalled the interlocutor, [add ad^ 
hereA quoad ulira. 

Lord CringleHey Ordtmry. For the Cbazger, Jamemmj 
J. M'NeOL CImtUm FUher, W. S. Agent For 
the Suspender, /. A. Murray^ Ja, MacdmdUL CM 
Macdmaldf W. S. Agent F. ClerL 

8. 



lb.96L OOURT OF SESSION. ITS 

jmCONB DIVISION. 
No. XXVI. 9 Deeemher 1888. 

ClfTHBERTSON : 
W. GRAHAM AND a SINCLAIR. 

lAXK11TPT.«^IIl8CHA&GE.r--*PBOCB88.~l. An ewtro^ 

fiuttdalq^br * iopay" a eompontkn by hUia^ to be 
gmranteed in part to Ae eredify^j^.Mii^aetion, in 
fmuidetation ^receiting a disdkarge injmll, hav^ 
iig been accepted f and a dUchm^^ narraHng tkie 
d^reement^ and tke deUeery of ike bUle *in implcm 
' ment' qf Ae dehlof^s part (^it^hwing been granU 
ed in absolute terms ; and, thereqfier, the debtor 
end mntiener hawngJaU^ and Aej^rmerhaioing 
ken scfuettraiedt withaut paying tike composition-'^ 
fimnd Aatu creditor^ who had s^Ascrihed the dis-^ 
^argCy was not entitled to be ranhedin the seqmes-^ 
M&mjor his originel debt^ hUjbr the composition 

^Agenertdfindisng cf expenses of process does not 
indude tike expenses incurr^ in M^ inferior court. 

BcmEET Gbaham, manufacturer in OAs^ow, having 
^^^come inscdvent, called a meeting of his creditors in 
Uarch 1819» and offered to ' pay them a compoedtion 
' >t the rate of Ss. per pound, payable by two equal 
' instalments at the distance of six and^ twelve months 
' from the 1st day of July then next, the last instal- 
* ment to be guaranteed to their satisfaction, in con* 
' nleration of their grafting him a discharge in full.' 
^^ offer of composition was renewed on the 8d of 



174 DECISIONS OF THE No. aC 

• Dec. 18M. April 1819, * with this variation, that the same should 
Cuthbertaon * ^ payable in six and twelve montha from the 2d 
v.Gnhain,ftc< day of that mcmtb^ and that the ddbtor should be al- 
BaiJerupL * lowed to retain the whole of his estate, heritable and 
Discharge. • nioveaWe.' 

Proeett* 

The creditors accepted this offer, and received, ac- 
cordingly, the composition-bills, those for the last in- 
stalment being indorsed by the debtor*s brother, as 
guarantee. Thereaftsr, th<d creditors, upon the narra- 
tive of the offer in the above terms, ' and consider- 
' lug that the whole of us hav^ acceded to the yidi 
^ arrangement, and the said Robert Graham has, in 
' impleniant of his part of the said agreement, de- 
' livered to us his own bills for the first instalment 
^ of the said compositioii, «nd has t^ delivered to ns 

* his own aoceptances, ii|dorsed to our satisfaction, for 

* the seomd instaknent thereof, the receipt of which 
^ said bills we do herd>y acknowledge, renouncing 

* every QJbyectipn to Uieccmtrary' — granted a disdiarge 
»B tile followiBg terms : '* Therefore, wit ye vs, tiie said 
' creditors, for owselves, and we tiie said agents and 
^ doers, kc. to have exonered and discharged^ m we, 
' by these piresents, exoner, quit claim, and for ever 

* simpliciter discharge the said Robert Graham of all 

* deirts, elaiRiB, i^nd demands of whatever nature 
' owing by him to us {Mrior to the date of the said last 

* meeting.' 

BefoM the first instalment bills feli due, boA 
Robert Graham and his brother, the cauttoher^ had 
become bai^kmpt. The latter settled with his aedi«- 
ioraupon a composition of 10s« per pound The estate 
of Robert Graham was sequiestrated ; and ia the rtftte 
of debts entered in the sedenmt-book Of the sequies- 
tration, the elaims of the creditoiai tmder his first 
bankruptcy weve Hmdted to the amount of the com- 
position on their respective debts, in the sequesAra-^ 



9$. A COURT OP SESSION- 175 

tioi, Gnbam offered a compoaition cf Ss. 6d. per pound, ^ .^ '^ ^ 
^AiA vas aoeepCed, and he was jududaUy discharged cuthbertwrn 
fif Mb debts, exc^ as (o payaMNit of that compoBJ-^ G imhMn^ icft 

iMi- BankrvpA, 

James Svrord had claims against Robert Graham, p)!^^^' 
friortolus first bankruptcy, amoonting to L.SS^. 
He bad been a party to the<»mposi(ion-<»ntraGt, had 
mn?ed the instalment htUs, in twins of the i^ree- 
Mit, aloBgst witii tile other creditors, and si^ed tiie 
iUtmg^ His origkial debt was eonstiftoted t^ biUa, 
vkich he never delivered up to the debtor. < Thte rea- 
«B assigned for this, by the suspendep, was that 
dboe wero othw obligants on these bills^ who eoati- 
aoBdfiaUe to the holder; but the averment of the op- 
posite party (though unsupported 1^ any evidence) 
w tiiat, with Graham's consent, the l^ls were r e- 
tnied» in ordar that Sword mi^bt have reoourse to 
them in the event of the cconposition not being paid* 

Swsad lodged «> claim in Robert Graham's seqnes* 
tiition;and, after it was at an end, ho assigttedhis 
daiBtt to Cuihbertson, who broi:^bt an aeticm against 
Grahani's cautioners ia the sequestration, before tibe 
sbetfff of Lanarkshire, for payment of the composition 
of Sb. (d. vpoa the whole amount of bis original debt, 
Mucliag only a sum received from John Graham, the 
omtioiier for his brother's private composition. 

The sheriff gave decree in favour of Cuthbertson ; and 
in a sospeMion at the defendeir^s in^ance, the Lord 
thdiaary proaoonced the £rilowing interlocutor: — 

* Fiadft itstated in the disAarge in process, that iii 

* 1U3 the- affam of Robert Graham, manufacture* in 

* (Sittgaw, having become embaiTassed^ he called his 

* oMitors tdgethw^and layinga staCeof his affairs be- 
'foRthem in Mwcfa, he' proposed paying them a 
""tmuffmH^Wi ai &VO shillings per pound, by two eqnal 
"inrtalmerts, tlie kstiastalmmt to be guaranteed to 



176 



DECISIONS OF THE 



^o.as. 



» Dec 1828. 



Cuthbertson 
V. Orabam, &c < 

Bankrupt 
Discbflrgem 
Froeng. 



their satidfaction. in coosideration of their' granting 
him a discharge in full;' finds that a difliculty occuT'^ 
ed as to this discharge, to be given hj one of the eitedi- 
tors, which having been obviated, Robert Grahai% 
on 3d April 1819» ' renewed the said offer of compo- 
sition on the foresaid terms, with this variaticapi,.tbat 
the sum shall be payable in six and twelve mcmibs 
from Sd April instead of Ist July last, and that he 
should be allowed to retain his whole estate heri- 
table and moveable;' Finds that this oflSsr ^as agreed 
to, and bills in implement thereof were handed over 
to the creditors, who (m their part grafted the dis- 
charge produced in proeess : Finds that JamesSwoid, 
the author of the pursuer, did not recover payment 
of these compo^tion bills, with the exception of part 
of the last bill, which has been recovered from the 
cautioner : Finds that Robert Graham, having ag^ 
become insolvent, was sequestrated, and has obtain^ 
ed his discharge ; the defenda*s having become cau- 
tioners for the composition accepted by the creditors, 
amounting to 28. 6d« per pound, and tl^ pursuer 
has instituted this action against them for the cmn- 
position on the original debt due to him, after de- 
ducting the auni which has been paid in part : Finds 
that the proposal by the bankrupt was to pay a com- 
position, on condition of obtaining a discharge of the 
debts due by him, and that the tenor of the dis- 
charge must be tal^n in reference to this arrange^ 
ment, so that it was an implied condition that the 
discharge was to be effectual only if the composition 
biUs were paid ; and, therefore, since they have not 
been paid, that the respondent is not barred from 
claiming for the original amount of his debt, in so 
far as still due under the subsequent sequestration. 
On these grounds, repels the reasons of suspension ; 
finds the letters^ orderly proceeded* and decerw; 



Xl ir. COITRT OF session: 177 

♦ talk the suspsnAers Uabie In expenses/ 9k. *v^*il!!* 

Cuthbertsbn > 

The suspenders rrabiMMf; and pfefl«ferf-^A compo-^ G raham ,&o 
rite-contract, like any ordinary contract, must be in^ Bankrupt - 
and receive effect according to the plain im-pj^^^' 
«f ite tetms. If the* creditor in express wol*ds 
iatonediate diseharge in fulli in considera^ 
4if cOmpoMtkm bills liafV^ng been delivered to 
bf the debtc»r, upon what principle can it be 
tihat^ in opposition to the tmequivocal lan^^ 
•f ttie deed, a future and conditional discharge 
ttUlf'^iiBdeistoM? There is surely hothing 
te ffae ^arrangement itrhidi i^ Indisputa-^ 
hy the deed in question, that niust e6m^ 
a-cottrt Hfi law to imply a stipulation at variance 
tke dedttred meaning of the contracting piETrties. 
diseharg^ itself interprets the pperioM agree-* 
by decltmng 'that the compMilfon Wild, of 
those tar the last lUstidni^nt 4Etie sdid to have 
Morsed to the creditor' 'satisfiictiod» had beeu 
to ihem ia * implement' of the debtor's part 
Hmt s|^reemeiil« TMi deed 4heiar jproeeeds : ' There- 
for^ trit ye us» &rtf; toiidveeicoDeredand discharged^ 
l^ai we do by tk^es^'preBeo^ eltouer, &d. the said Ro^ 
*krt Gtriiain^aa tiid dcArt^ 6ce. «wing by him to 
'n prisrtd tte saicl last mesltng/ When the offer 
tf eoiiTealioa was^. made and accepted; If there' 
«cre ambi^ty in the expressions here employ^, it* 
VMld^ without doubts be more reasonable to suppose 
ftst-'At* partiM Bad intended :w MLow t&e^ course 
FhM OB^by the irisdom afiibe,leg;i8latare, in refers 
caee ta |adicial comitowftoiWir^jilia;! to assume the 
ckugo's cMaCruetion of the coveaaat The case of 
HaiadUl, fonnded on by the charge, can be no pre-* 
oicBlfarthe detensination of the ptesent case; for 
thmihe creditors did not grant any discharge upou< 

M 



178 DECISIONS OP THE No. «6. 

/ 

*w!lw* receiving the composition bills. And with regupA to 
Cothbertsona^^^ <^^6 of the Dulcc of Argyle, it is apart altogether 
OiB iiam, A c. fjQjjj guy question as to the effect of a compositiiHi 

Bankrupt COntract. 
Di§oharg€, 

The charger answered^An extrajudicial eoraposH 
tion is a mutual contract, whereby, on the one hand, 
the bankrupt becomes bound to pay the eompositioD, 
and, on the other hajfid, the creditors agree to give him a 
discharge in full. The consequence is, that, if the cem* 
position be Hot paid, the contract is at an end, mad the 
original debts revive. Where, therefore, a disdiarge 
is granted in consideration of a certain compoeitioB, 
or the delivery of bills or bond on account of the coia* 
position, it is implied that the discharge is condi- 
tional, upon the payment of the compositioii ; 
the Duke of Argyle v. M'Aljpine's Tmstees^ 94th 
May 1825; Horsefall 9. Virtue and Company, 94di 
Nov. 18917. I^ ^7^ distinction eidsts between tiis 
ease of Hotsefall and the present, it is in Iktout 
of the latter, ip vrhidi ..the original biUs: wtre 
retained. That no. departure from this princ^ 
was intended in granting tlftf present dischai^ ap- 
pears from this, that it pMceeda* expressly upon Ae 
offer of ccnnposition, which it narrates, and.wfaich was 
a proposal by the bankrupt, * of poynig, lus^ exe^ton 
* a composition of 5s. per pound, in considap^ttai of 
' their granting him a disdiarge in full.* . > 

iy)nfG^/ee.-<-It. is apparent, from tihe reportof 
the case of Horsefall, that there no deed of diadiBfgs 
at all was granted, the .matter having been aliowed to 
rest on the mimite of the creditors nnri>pting die ofo 
of composition. * Tiv^instalment billa were paid ; bot» 
before a renewal of the third was paid, the debtor's 
estate was seqne^j^ited ; and the Court went eo far « 



^ 1l fl& COURT OF SESSION. 179 

' toboU (and I think rightly) thut the composition was ^^^^^^^^ 
vWjr ?oided, although the interlocntor of the LorcJ cuthbertson 
(k&ary, which was adhered to by the Court, only ^-^^J^^' 4^- 
ftoad the creditors entitled to rank in the sequestra- ^an^trup^ 
I tbn for their original debt, to the effect of drawing^^^;f^- 
[fiA payment of the last instalment. , 
' Bnt here the suspenders re^^^ ttpon the explicit 
^leros of the discbarge gvaiited when the compositioQ 
^ttb were delivereid' / VVe must all be agreed that the 
'9n receiving Composition bills will not make the 
jfadiaige of the original debt absolute. But there is 
Hateaodily in supposing that creditors take the com- 
[fBRtioB IhUs, with the stipulated seenrity, and at the 
le time give an unconditional discharge in fulL 
3lere can be nothing at all illegal or unreasonable in 
tatars extrajudicially doing what the statute enacts 
litlie case of judicial: compositions. And, in the pre- 
iBt case^ if parties had meant to discharge the orl- 
#vd debts, in consideration of the debtor having de- 
%»Bd the composition bills with approved security 
tv the last instalment, I cannot conceive what words 
W^ apt and proper could have been' used f^r that 
H^m than are> to be femid in tbk ^sd^ge. 
' Uifi JPt^»f%.-^I view the question in the same 
T^ We must be entirely regulated by the words 
tf tbe discharge, and enforce the contract which the 
l^ties ajppear to have Altered into. And I agree 
^ Lord Glenlee, that it is impossible to conceive 
^ttds more apt and fit for expressing an immediate 
^absolute discharge, than those which the creditors 
w chosen in the present case. I also think that the 
^ of Hoiaefall was such as his Lordship states it ; 
loi the accuracy of that view of the case is confirm- 
^by what is stated by ^if r Bel), with reference both 
^^ decision, and a question such as the present, 
^^ &e learned author considers as not yet having 
MS 



180 DECISIONS OF THE No.26. 

^ wlll!f ' been decided in Scotland ; see vol. ii. pp. 473, 506. 
Cuthbertsoii The case of the Duke of Argyle is wholly foreign to 
i>.Grahain,&cthe point here at issue. 

Bankrupt. LoT^^ JiLsHce^Clefk dud AUoway entirely concur- 

p"^^ red in thebo opinions ; and— 

. T7ie Courts accordingly, ' altered the interlocutof 

* reclaimed against ; muI suspended the letters simpli- 
' citer; reserving the dhiaiger*u cjaim on the composi- 

* tion bills; and found the chargtr liable in expen- 

* ses ; and allowed an accoimt thereof t9 be given in/ 
&c. 



To the auditor's report on the suspenders' ac^^nint 
of expenses in this case, it was objected by .them, Aat^ 
he had disallowed the whole expenses incurred in the 
inferior court, which they had understood to M un- 
der the general finding of expenses in their favour; 
but the Court repelled the objection, the suspenders 
having made no special demand at the time for thes^ 
expenses. 

Lord Medwyn^ Ordinary. For the Charger, Dean of Toe 
(Mmcreiff) J. S. More. W. and J. G. EUie, W. S. 
Agents. For the Suspenders, Sk^ie^ Wilson. Jix 
Patismy jun. W. S. Agent. R. Clerk. 

8. 



87. 



COURT OP SESSION. 



181 



FIRST DiriSION. 



No. XXVII. 



10 December 1828. 



WILLIAM THOM 



ARCHIBALD BLACK, 

iiTATJO FuGJE. — A meditatio fiigae warrant found 
competent at ike instance of the drawer against a 
acceptor of a hiU^ after it had been indorsed to 
[ m tUrd party for talue^ and before it fell due. 



8th November 1828, Black presented a petition 
the Sheriff of Renfrewshire, against Thom, set* 
forth, that he ^ owes the petitioner the sum of 
wl40 sterling, contained in a. bill drawn by the pe« 
Ititioner upon, and accepted by, the said William 
iThom and Adam Smith, writer in Paisley, jointly and 
IfeveraDy, of date 9th June last, payable six months 
[Vifter date, which bill has been indorsed away by the 
petitioner to other parties, and is now held by John 
Cochrane, silk-mercer in Paisley, for value, and will 
&ndue on the 9-12th of December ;' that he was in- 
the defender meant to leave Scotland, and go, 
liist to Liverpool, and then to America, or elsewhere 
1 ibroad ; and praying for warrant to incarcerate the 
defender as in meditatione fugts, * until he should 

* make payment of the aforesaid sum, or find caution 
' that he would either pay the bill when it fell due, 
' or aMde the raising and execution of any diligence 

* which might be adopted against him for the pay-* 

* meat of the said sum and interest, within the space 



IBS 



DECISIONS OP THE 



No. 97. 



Thorn V. 
Black. 

Meditatio 
Fugm, 



*^^^^^*- * ^^ ^^* months from the date of said bail-bond; The 
petitioner also made oath, * That the debt claimed by 

* the petitioner is justly and truly due by the said 

* William Thom, as stated in the petition/ 
The defender having been brought before the sheriff 

for examination, declared * That he intended, if he 

* could not get employment here, to go to Liveri>ool, 

* to commence business there in the course of a fort- 

* night; 
The sheriff granted warrant for imprisoning the de- 
fender * within the tolbooth of Paisley, therein to re- 

* main till he find sufficient caution in the books of 

* court, that he will temain within Scotland for the 
' space of six months from this date, and abide the 

* raising and execution of diligence against him for 

* payment of the debt; 
The defender, having been incarcerated upon this 

warrant, presented a bill of suspension and liberation, 
on the ground that the warrant was illegal, the piu*- 
suer not being the real, but only a contingent creditor 
for the debt. The Lord Ordinary passed the bill, but 
refused the liberation. His Lordship added the fol- 
lowing note : — ' The Lord Ordinary sees no sufficient 

* reason why a contingent creditor, such as a cautioner 

* or an indorser of a bill, should not be able to obtain 

* a warrant against the debtor as in meditatione fug<e ; 

* but, as the case does not appear to have occurred, he 

* ha(s passed the bill, that the question may be tried; 
Both parties presented reclaiming notes to the First 

Division. Their Lordships' appointed the case to be 
heard before the whole Court 



Pleaded for the suspender — 

The question is, whether the charger was in tifnki 
to apply for this warrant against the susi)ender. He 
was the drawer of a bill which was accepted by two 



Mtl. COURT OP SESSION- 1«« 

fenoBB. The presumption may be that there is value ' ^^^^y 
atfeliaiids of the acceptor; but that is merely a^iiomv* 
fRSBB^on, and may not be the fact. It happens ^'* ^' 
tfoj dfty that the acceptor is not the debtor, but that M0dUati9 
k accepts only for the accommodation of the drawer, '^"^** 
Ae fRsmnption that the acceptor is really the deb- 
tor is a presumption which daily experience shews 
■aj not be the fact ; and, therefore, in this question 
rfsominary apprehension, it is not to be assumed. 

After drawing this bill, and getting it accepted, the 
ckitger did not keep it in his own possession. He was 
aotcmtent with having received this document of 
Ut, and holding it as such against the acceptors ; 
kit he indorsed it to a third party for value. He dis- 
ttnnted U; and, in doing so, obtained full payment of 
Ae delft Having thus received payment of the debt 
Itthe time he made this apj^cation, he was "no longer 
Ac creditor. He was divested of all nght to the 
Ut at the time; and, by his own act, he had put 
>Bodi0r person in titido to take every remedy compe- 
tat to him by law, either for jfeiyment or security. 
The question is, whether a person so situated is en- 
titled to use the extraordina^ remedy of applying 
far a meditatioJiigyB warrant. 

^edUatio ^^ig€e warrants are comparatively of re- 
cent introduction into the law of Scotland. They were 
fctroduced without statute,; lis an extraordinary re- 
^Jf and considered as a stretch of the powers of 
Ale Court In the case of Mason's Creditors, Suppli- 
oots, 30th Nov. 1665, Stair (Mor. 8547) the Court 
Ambted dieir powers to grant such warrants, even in 
^ pUdn case' of debtor and creditor. From that 
^3 it has been held to be an extraordinary remedy, 
^edwith great jealousy, and such as ought not to 
Ik extended, or taken as a matter of course. 

"Hie law of this country is peculiarly careful of the 
Person e^'en of the most certain debtor. It lays open the 



iM Dmimom of the no. s 

lorCec 1628. gQ^js of the debtoT to aU rnaaiBer of 4ilig^ence» h^ 

Tiiom V. protects the p^^rsoa ; and, accc^diiig to l^gal prinmp 

Black. ii ^Q^ ,jQf; allow ctiUgesiee against the par^oii^ for di| 

Mediiatio The priaciple of the law is, that a persoo who ra a cmn 

i^uydr. ^^^ of another, althoi^h he may have th^ elearest^gram 

of debt, has no right on such a title torarrest the pei«| 

of the debtor ; he must fivbt* obtain letters ef bomiii 

and give due warding; and, on bi^ falUag tbffm 

pay,, he must denounce him as a. rebel, and obtain^^ 

t^rs of capticMi. 

This has always beeju consideised as VL^^teryeftn 

ordinary remedy ; and the principles by which it^^ 

regulated were laid dowa from the Bench in tb^ .eai 

of Borthwick v. M'aibbon and Hamilton, 14tb M« 

1&13. .-* 

There never was a case of medki^^ fvg€e .WBxm 

having been granted in circumstances similar te^dl 

present.. The principle of the law is, that tbig ;^ 

medy is only competent to tho^e who stand really i 

the situation o^ tb^ i^reditoar. AU. the authorities, fi 

9ume this. Erskine^nd Stair uuiforjinly asstini^ tfai 

there y» a clear existing ,(iebt as between tb^ parties! 

and the opinion of Banji^ton is express on thisfoifll 

1.402; Hutcheson/u 4i^5\,x^oU^ -< ■ 

. It may not be necessary that ^document <rf deb 

should be prod^ced, but there must be the oath a 

the creditor of an existiifig debt. The charger in tW 

case was not the creditpi: of >, the suspender, He hsi 

assigned away the dpcumwt of 4ebt, 

There is no proper .analogy; between ^e prcseol 
case and that of a dehtor f>etge?h9^4id,m§pi9im^.i^ 
that case the creditoi;, even altboughic^y .conditiqpidi 
may have his remedy; be may prosewlia an a^]^ 
dication; he may demand security, andvhe iwy 
arrest ou that seaurity; but the law allow* no- 
thing . farther. The creditor may in such a esse a^ 
tach the debtor^ goods, but he cannot attach his per- 



llktr. COURT OF SBSSIOir. 180 

I 

[ M The application for a meditatio fUtgtB ^ajntX^^^y^ 

\ kptioreferonee to simsIi a case^-^it is for seizing the ^hom v. 

^famk\ aad.it does not proceed on any averment that^^* ^^- 

lAlMtoris vergen^ ad ina/riam; on the contrary, jif^^^t/n^ 

fit usual ayosieiit is tbat helms funds, but that he^*'^''' 

|kfefflovmg these; and this is the evidence gene- 

^Hftf adduced of his hd:Bg m tmditatiaw /^g^. 

L la this.case the eharger could not raise diligeace. 

iBfttottld.not even have raised action for the debt. 

i fleltad assigned .the ground of diiigenee to a third 

Hprtjp ; ind eve A that thhrd psu^ty could not r^se diU«* 

I fMei as tiie tenn, of laymeat had not arrived. 

|i V If aa action was brought at all, it could only be for 

^JBSirity ; and then they must have alleged vet^^eHi ad 

k tMjpurai ;'and that could only be to attach the propeKy, 

i an^ the person a£ tiie debtor. The creditor in an 

l^krilable bond may 4o diligence on.th^ personal ob- 

' ligstieD ; bitf iuthe-case of aad^a bond being assigned, 

; mid the eed^it apply for this extraordinary remedy 

I ipai Ae mere allegati^m that the bond might not be 

I |Hd when due, while he had the heritiable security 

mntmng ? But the case of a bill is much more de- 

laaie. It may fiass through many hands. In most 

CMet bilk are accepted, not for value in the hands of the 

ineptoF at the time, but thai he will have value at tfaa 

tioie the bill becomes due. The acceptor is debtor to 

the holder. He aannot get rid of this obligation ; but 

k really may not be debtor to the drawer ; and yet 

can the drawer, in circumstances like the present, at- 

tMh theperaottof the aoaeptor, although he may not 

h tndy his debtor ? The aoceptor may be ready to 

lay the UU, but the drawer cannot receive payment. 

He has angned awfiy the document of debt, and, 

terefbre, not beiqg in a situation to demand pay* 

neaty be cannot be entitled to« resort to this re- 

^y to sfcore-p^ypieiit He cannot relieve, tiia 



166 



DECISIONS OF THB 



No. 27. 



Thorn 9» 
BUcb 

MediUUia 
Fugm, 



^^^^ debtor from his oUigation to the true holder of the 
bilL If ih\s remedy 'is competent to the drawo*, 
it may be competent to every indorser ; and the ac« 
ceptor may be harrassed with twenty such applica- 
tions from jiersons who at the time may i^ot be really 
the creditors in the debt. 

This remedy is not competent to a person who has 
a caption. The real creditor may have a caption ; \x^ 
in the meantime, is the debtor to be exposed to this 
diligence at the instance of a person who is not truly 
creditor ? So that what 13 called a contingent debt, 
may not, in fact, be a debt at all. It only would be- 
come a debt, not merely if the acceptor fail to payy 
but if the holder shall give the proper notices ;. imd 
neither the one nor the other of these may happ^. 
In the jn^sent case, there is a farther peculiarity-^ 
that there are two acceptors to this bilL The drawer 
IS not entitled to assume that the other acceptor will 
not retire the bill when it is due. It is clear that, if 
this application is competent in tl|e present casej it 
will be equally competent in every case, of aii accepted 
bill, while the Court cannot inquire lyhether it is 
an accommodation bill or not. Thus the drawer of 
the bill, who really may be the debtor, may have re- 
course to this process purely for the purpose of ha- 
rassing the acceptor, who really may be the creditor ; 
and the same proceeding would be open to every in* 
dorser. 



Atuwered for the charger — The gnspender, ivho 
has accepted this bill, is, on the face of the doca« . 
ment, the debtor of the charger, who is drawer. It 
must be assumed, in arguing the general questioo^ 
that the accepts is the debtor of the drawer. All 
the presumptions alluded to hy the suspender, of 
the acceptor not being the true debtor, might occur 



No.17. COURT OP SESSION. 187 

Msmgh the bill had never been discoitiited, but still ^^ ^'l y 
iBDuned in the hands of the draww. Therefore, they xhom «. 
anaot affect the present question. The party, by his ^ ^^' 
cteptiog the bill, becomes bound to pay the amount jtfMfifefi* 
to the drawer. The presumption is, that he has the^*^^ 
dnwei^s money to that amount in his hands. It is of 
mrportance to attend to the nature of the document of 
Mt It is a discountable document, put into that 
shape for the express purpose of enabling the draww 
to get money for it. The very purpose of framing 
(he document in that way was, that it might be 
&Goimted before the teritn of payment arrived. 
Hie mdulgence in postponing payment may have 
bees given expressly on condition oi the debtor's 
^ng a discountable document. If that had Hot been 
^Ten, payment of the original debt might have been 
enforced. The condition of postponement may huve 
ken that the creditor might get value in the mean* 
time by discounting the Inll ; and it was for that pur-^ 
pose the document is conceived in the form of a bill. 
Therefore, the }>arty is not entitled to complain of the 
use that is made of the bill. 

He obligation of the acceptor in the bill remainsr 

entire although it has been discounted. It has been 

discounted on his security, with the additional security 

ef the drawer. The drawer, by indorsing the bill, be* 

comes the debtor of the hdder, who, having recourse 

sgaisst the drawer, may not look to the acceptor in the 

iint instance ; hence the drawer is deeply interested' 

in the bill being retired by the acceptor. There is no 

extinction of the original obligation; and if the drawer 

B o^ged to retire the bill, ihe acceptor still remains 

Bsdebtor. T!he fact that the drawer may have got the 

looneyin the meantime does not diminish the obll« 

^tion of the acceptor. One difference arising from 

disconnting is, that the drawer thereby becomes cau« 



186 



INCISIONS OP THE 



N<kS 



Meditmtio 
Fujm, 



^^^^^\^ tioner for the debt, for which the acceptor is tl 
Thorn ». principal and the true debtor. If the acceptor leaYi 
Biad^^ the country, the debt will fall to be paid by the drawei 
and he is liable in diligence to do so. 

The particular diligence oimeditaiiojiigm is not f<) 
the purpose of operating payment of the debt ; It i 
solely for the purpose of security. It is not a dill 
gence where the party is entitled to get c^xxtion Jiidiea 
turn solvit but merely caution to remain in the countr| 
to abide the diligence that may be raised upon the 
bill. It was introduced exdusively for the security vi^ 
persons who were not in possession of liquid documentif 
of debt, or were not in a situation to enforce payment 
of that debt. It has been found competent even upon 
an action of damages, which is merely an imaginaiy, 
claim. It is for the security of a creditor who may n(A 
be even in cursu of constituting his debt. 

The origin of this diligence is much farther back 
than the case of Mason in 1665, referred to by the susn 
pender. The Court did not in that case doubt th^ 
competency of a creditor resorting to this remedy. The 
only doubt was whether the Supreme Court itself coiil4 
grant the warrant, which had been always granted in 
the Admiralty Court, or by magistrates of royal, 
burghs. The authority expressly acknowledges the. 
practice of inferior judges granting such warrants- 
Whatever may have been the origin of this warrant* 
it is now aa unquestionable remedy; and the (Koly 
question is, whether it is applicable to the circuni« 
stances of this case ? 

As the object of the warrant is to secure person^ 
who were not in a situation to demand payment of 
their debt, it must be applicable to a case liJte the 
present. The diligence is for the security of an even* 
tual claim, which the party may not be ii^ a condk 
tioa to enforce, or even to receive payment of; Beff% 



Uft. COURT OF SESSION. 180 

a. 557. The very object of the dUigence is to meet a *^^^^^•• 
diiffl like the present. Thomo. 

There is no distinction in our anthorities regard- ^^*^}^; 

bg this diligence between a real and a contingent jif«</tiaiii* 
oeditor. The remedy is just as necessary for the se- "^** 
rarity of the charger as if he held the bill in his pos- 
lession, and had neVer indorsed it away. He is liable 
in dfligence at the instance of the holder^.if the accep- 
tor does not remain in this country to retire it. In- 
deed, this remedy is the more necessary to the drawer 
fiom the bill having been discounted, because thereby 
1r has become cautioner for the acceptor, and exposed 
Wmseif to personal diligence by that cautionary. 

Bat if the acceptor had been sequestrated during 
&e currency of the bill, it is settled law, that a cau- 
tioner may claim, if the true creditor has not done so, 
to the effect of having a dividend set apart for him. 
The drawer cotdd have ranked upon his estate on this 
contingent claim ; and could have had a dividend set 
ttide for him. It is therefore a claim of that descrii)^ 
tioQ which may be made effectual, and against which 
tiie party is entitled to secure himself. 

The general rule is, that the remedy is for the se- 
cority of a party having a claim which may even- 
tnQy be good against the other party. It is not 
efficient to say that no action could be brbught for 
payment, because the charger had not the document (if 
debt, and the term of payment bad not arrived. It is 
jnrt beeause the party cannot demand pajrment thsit 
he must have recourse to this remedy for his ultimate 

KWlltjr. 

ion? Jkrtici-CXerlL—I have ever b^n anxious, 
in the detest manner, to adhere to the niles of law 
in cases ginnlar to the present. In my opinion, the 
'^ of law' in a case of tibis land buglet to be strictljr 



186 DECISIONS OP THE No. 87. 

^l!2!llS*' tioner for the debt, for which the acceptor is the 
Thorn V. principal and the true debtor. If the accepts leaves 
^ ^^- the country, the debt will fall to be paid by the drawer, 

Meditatio and he is liable in diligence to do so. 
Fujm. rpj^^ particular diligence oimedUaHoJug^ is not for 

the purpose of operating payment of the debt ; it is 
solely for the purpose of security. It is not a dili- 
gence where the party is entitled to get c^xttionjtitbca- 
turn solvi, but merely caution to remain in the country 
to abide the diligence that may be raised upon the 
bill. It was introduced exclusively for the security oC 
persons who were not in possession of liquid documents 
of debt, or were not in a situation to enforce payment 
of that debt. It has been found competent even upon 
an action of dantiages* which is merely an imaginary 
claim. It is for the security of a creditor who may not 
be even in cursu of constituting his debt. 

The origin of this diligence is much farther back 
than the case of Mason in 1665, referred to by the su8» 
pender. The Court did not in that case doubt the 
competency of a creditor resorting to this remedy. The 
only doubt was whether the Supreme Court itself could 
grant the warrant, which had been always granted in 
the Admiralty Court, or by magistrates of royal 
burghs. The authority expressly acknowledges the 
practice of inferior judges granting such warrants. 
Whatever may have been the origin of this warrant,^ 
it is now ap unquestionable remedy; and the only 
question is, whether it is applicable to the drcum-^ 
stances of this, case ? 

As the object of the warrant is to secure persona, 
who were not in a situation to demand payment of 
their debt, it must be applicable to a case like the 
present The diligence is for the security of an even-^ 
tual claim, which the i>arty may not be ip a condi^. 
tion to enforce^ or even to receive payment of ; jBd/, 



No. 87. COURT OF SESSION. 180 

a. 55T. The very object of the diUgence is to meet a *^^^^^•• 
daim like the present. Thomv. 

There is no distinction in our authorities regard»^^^' 
%thi8 diligence between a real and a contingent ji/<?£/tiaiii* 
oeditor. The remedy is just as necessary for the se- ^^^ 
cnritjof the charger as if he held the bill In his pos- 
sessimi, and had neVer indorsed it away. He is liable 
in dfligence at the instance of the holder^.if the accep- 
turdoes not remain in this country to retire it. In- 
deed, this remedy is the more necessary to the drawer 
ihun the bill having been discounted, because thereby 
1r has become cautioner for the acceptor, and exposed 
Umsdf to personal diligence by that cautionary. 

Bat if the acceptor had been sequestrated during 
&e currency of the bill, it is settled law, that a cau- 
tioner may claim, if the true creditor has not done so, 
to the effect of having a dividend set apart for him. 
Tke drawer could have ranked upon his estate on this 
contingent claim ; and could have had a dividend set 
•side for him. It is therefore a claim of that descri})- 
tion which may be made effectual, and against which 
tbc party is entitled to secure himself. 

The general rule is, that the remedy is for the se- 
coritj of a party having a claim which may even- 
taaQy be good against the other party. It is not 
soflident to say that no action could be brought for 
payinent, because the charger had not the document of 
debt, and the term of payment bad not arrived. It is 
jttt beeaase the party cannot demand pajmient thsit 
he must have recourse to this remedy for his ultimate 
weaiity. 

Lord Ju9tict'CXerk.—I have ever b^n anxious, 
in ifae strictest manner, to adhere to the niles of law 
"» cases similar to the present. In my opinion, the 
'^ of law in a case of tibis land buglet to be strictljr 



190 



DECISIONS OP THE 



No. 27. 



Thorn V. 
BUck. 

MedU^Mo 

Fvffm, , 



^^^!!^ followed out. In Considering the present qnertioii, 
the only point which it is necessary to determine 
is» whether the charger^ in making this application, 
had such a legal claim of debt as to warrant his 
appljring for this warrant ? If he had a legal claim df 
debt, then I think he was entitled to make the ap- 
plication; so that this question resolves into flus 
point : — If, by the discdnnting of the bill, all obliga- 
tions between the drawer and acceptor ceased— if, 
•by the mere act of diseoanting, the drawer ceas^ to 
have any connexion with the accept<Mv**thea clearly 
the charger was not a creditor in this case, entitled to 
use this remedy. But if, on the other hand, the in- 
ddrsee or holder has a claim against the drawer ; if 
the drawer, in consequence of indorsing the bill, is 
liable to personal diligence at the instance of the holder, 
then he is clearly entitled to operate his relief against 
the acceptor. I think this is a debt whkh the diarger 
was entitled to secure himself against by this remedy ; 
not that he could call for immediate payment, or even 
for the immediate imprisonment of his debtor, but 
merely that he should give security that he would r^ 
main in the country to fulfil his obligations* 
* It is quite dear, in the present case, that the diar- 
ger, by endorsing this bill, became the cautioner of the 
acceptor ; and he has, therefore, a claim of relief from 
that obligation. I think a. cautioner has clearly a 
right to resort to this warrant to secure his relief, 
, that his principal may find eBntitmJndich nHi. 

It is the duty of the magistrate to be cautious as 
to the existence of the debt. It is an extraordinary 
remedy, in regard to the granting of which great cir- 
cumspection is necessary. It is said the chargericould 
^ot have brought his action for payment of the debt 
That does not solve the question ; the retaiedy is com- 
petent although the creditor may not be entitled to 



HV. COURT OF 8BS8ION. 191 



instant payment Upon the whole, I think^^^^^^^ 
tlie qi|dieation was conipetent* Thom v. 

Lard Gleulee concurred. bibc)^ 

Lord Carekmi9e. — ^I have the misfortune to diiOfer Mgduath 
hm the opinion just given. Personal liberty is sacred. "^* 
ne person of a debtor is not to be touched, except 
nkrtlie express authority either of written or con- 
mtndiiiary law. I consider the absence of all authority 
sdeeifive against the legality of the application in 
Ak case. Not a single instance is produced, or refer- 
id to, m whidbi a mediMio fngtB warrant has been 
franted at the suit of a contingent creditor — that is, a 
penon not actually a creditor at the time of the ap* 
ftoition, but who may afterwards become so. Bills 
tf ocbange have been in constant use in this country 
farmote than a century, not only in mercantile affairsi^ 
hit in all transactions, and among persons of every 
deseription. They are often resorted to by people in 
cmbanassed circumstances, and most likely to abscond. 
But it is not pretended that a single case ever occurr 
>rf in whidi a medibxliofugte warrant was granted to 
n^ person whose name appeared on a bill, excerpt the 
^Mer. This is the strongest negative evidence of the 
^oderstanding of the coiiqtry ; and negative evidence' 
i§ a sufficient foundation for consuetudinary law. 

A meditaiio Jiigie warrant is stated by all our 
vritm to be a remedium extraardinarium, and to have 
km introduced with diflSiculty, and contrary to the 
fpm of the law of Scotland. I differ from the 
Prtitioncv'a counsel with regard to Uie construction he 
pot upon the case of Mason. He seemed to say that 
^ Court were unanimous in that case, that a niedi^ 
^fyg^i^warruat was competent ; and that they only 
^tnd whether the application' ought to have been 
'■^ to the Court of Session or to an inferior judge, 
^tf the report expressly bears, that the doubt enter- 



Thorn r/ Cmirt in iiiaritiwiei»se«r«h*^tbe>^ri«l^^ 
Blacky burghs with wgard tm debUi Qf^A^^yitiawtte^ te ll tt - i^ 

^*^ existed €nm tOam iJ^emoMd) icMiMt^'>«MMille»ll 

civil oausdfliyf^abf itescntpdoiij-ii 9onA#'iif 4bAriiM|A 
tbougbt tim v^stretdi whilA ^8 Murk irfi4iw^%ill>ft«f 
eoiitied to tiQftke, mA «bat) the dikig* wxtft 4Mti^<4iy 
eogittzanee of 4b4 Pri vyi »CbimdL ^ A tm^ority* ^«^ 
CoTu^ beldr 49t]ier«riBe. B«it» altfaeugb- it ifii4Ci(Ai<b4ib 
regretted 4hat 4be lemedy of a meditm^Jugmm^mm 
hu been i]ii»>diieed, and tbst it is^ now a poM ofj^bi 
cousaetudinaiy la^ of ^Scotland, jrour LotodflUpt, whtfp 
have more correct notions of the dutf oi this* CvfM 
than prevailed ia the reign of Charles II.> ivtt tib^vta^ 
extend i t» unless justified by a dear asatogjrv 9lixikKf» 
I am goiogi too &r in adixnttingthat any «atial^g;ifmt 
justify it. . .» i .,;n'*e«^ 

It is established law that the |MU!tjrvwbo'a]qdi»for 
ameditatiojuga warrant must swear to die y^mf^dt 
existence of the debt. Naauehoath waa emitted hanM? 
and it was impossible that it could hetenikted; nSlib> 
petitioMP had parted with the d/ocument of debfejiifaif 
had reeelired value. lot it; it .had pasaed^ia 
hands; he was necessarily ignorant in wboBen] 
sion it was, or whether it was in any pensonWipoasesU 
siqn. How did it appear that it had not tN»«L-ioit ? 
that it had »ot beea:canceUed drdestroytdi?} *tkalait 
had n<»t coine into the hands of a'per86Q.^aiast«d]«Bii 
the acceptor had a liquid and admitted chuiti ofitiMDr 
pensation ? Suppose, iii the ordinary icaae^ithe^^efakoa' 
appears before a ^nagistr^teh^radiaits th^ 4eUU4iit' 
prodwM a W for ih^ vavy. suwt due l^y th^«4llHi409«'< 
oath of verity cou)4;be>re^ved in ^hat^case^iMrfltfxiHj 
taJ&ofuffne warra^trQc^i^ gr^tedi ..Sq^ fMmv^i 
coMi^, in this caa&>*th^ tb^.lMld#r<^f U^^ibil^e^i 



JkH. COURT OF SESSION. 193 



f,^d not stand in that situation in regard to ^^P^^^ 
? The petitioner knew nothing about Th^"" "^ 
jMridswcaraotiii]^ about it. Thia is totally dif^B^^- 
^frama^rcaaeinifi^liich.a mec&aiio Jitffie war-^MedUtmt '• 
!«tt Via ever giattted beCNre. If audi a remedy is^*'^^ ' 
#|uei it muat be introduced by ibe legidature. It 
knUOaA that an oatii of verity is neoesaary ; but 
sArt does the oatbveaolTe into here? The petitioner 
4m aot swear that he ia.creditdr ; he only swears, if 
4a MH still exials^-'^if it has not been cancelled— if it 
»iot«itiJ€rt to a daim of eompmsation against the 
I ICMs who may chance to be the holder when it be- 
4MBda&r-4f it ahaU beduly negotiated^ and if tib» 
tSMptoF fiuls to pay it, then I the drawer may be 
ll%ed to do sow But is an oath quaMad by all these 
WiBgeacies 9bl oath that the debt exiats, and that 
"iifetilioaer is creditor, which is admitted to be the 
4KitiaI requisite to justify the application ? 
' Udc at the analogy of other oasies. Take the* case 
^^sequestration. A person who is really creditw, al- 
tegh the term of payment has not arrived, may 
; ihiaiit sequestration of his deMov's /estate, but a.con^ 
^(^gent csreditor cannot do so. If yea will not allow 
^eo^iogent creditor to deprive the debtor of the ma^ 
^>pBieiiti>f bis pTojpertyf will you allow him to seise 
tedebtor'specson? 

His said that the contingwt, creditor, though he 
tBiMt eater into possession of the debtor's property, 
^ mt Mrtidn dH^ences against it in security ; for 
•■nptei that he may arrest, inhibit, or adjudge, in 
■^Hf- But the very circumstance that he may 
*>**e^sii«!rir#over the debtor's property is one reason 
fviot iA>wi|ig him to sei^e the person also. Farther, 
fc wdogy toiaHy flfl^* An adjudication in security 
a is title of possession. The contingent creditor, ad- 
J^'pBg ia se<;urity, cai^ot ^y, I will deprive you of 

N 



Ifl4 BBCmom 09 OWE No. «. 

*t ^^^^^ "g^ of yow lmd» iiiiiflirM.|Wli«ail«MlNrp«f 

Thorn «. meat of your debt. Thm* yAy should rh«Hbfi4l9irQl 

^^ ^' to s»y, I win deprive you of j^ms.Uk&cKy^^Ji IfillrHMi- 

jiMiM» Mgn you ta a dimgeoii, tiiittt.yoii»fiiid /cnrtioi^,?.. m. 

^*^' Jt IB rery true that weonyewWnwap may -ariiifiR 

eertain cflflefi* if & i^iBody is not giveotalibaii^ lA^ 

not tlUolc they are sp great w have been iqprafaalfli 

The indorser of a bill, for example^ whafamntbtt 

the aco6pt(nr means to ahsoood, mBf^ eitfier bring f9^ 

ward the holder to ^prehsDd him, or take ap tbpUK 

hunself, which will at oaoe render bis flffUestuMi 

oompetenti But, admitting that a faKtieT' MOMdy if 

necessary, it is for the Lq^atwew end net £or ikk 

Oo^rt, to grant It. 

Lord ^ttaway. — ^I ooneur in eT^ry> view wkkk 
has been stated by Lord GoiPehevse. It wssrita* 
pofisiUe to doubt, not only from the obsemmtiolWf'i^ 
8ir George Maekenisie, but from the report of tbtftoiw 
of Masen in 1665, that the Court had the grestert 
4iffieulty in sustaining their own juriadicttoa In^grMit^ 
tag' a warrant de m^tiiiAMe fMg^e for the 6f8t.(lipM 
i^mlfu dehiterem mspeetum et Jitgititum. ' Ifr'nns 
impossible to apply the Roman law, whioh^fsi^ 
aneestors were dbiefly inclined to follow, fbeiaidk 
the whole system of arrestment of the pbisori>(M 
• civil debt was directly upon an oiqMisite priaeM< 
from what had been uniformly adc^ed as 4he coni4 
n(>oa law of Scotland; and the. v»»cning* ft>r ik 
adoption in the ease of Mason was fisunded shtfilf 
upon lK)](der warrants, upon the practice of the ^?o«rt 
qf Admiralty, and iqion acts of warding in '^t^sl 
burghs. And I think it is dear that, when thalirfi^ 
eee^ng was adopted with sueh besitaticm andi^i^ 
such deubtAil autherjty, it conM n(M» be the^iacUst* 
tion of the €ourt to extend thote pbwfeni, itfiiiAtksll 
not b^B conferred by statute/ but had^beeni^i^esli' 



:4hk#«»4MriiiMiM)<itke6tidlial)lle> •"' '< '. '"Thorn*. •' 

nit mttigHHA^'mt^y •tfctt' #Jgh't trMch' tliejr kad/*** 

aiH'«he#ef«Mi«,4iMl3fe<ied«lifffi)^iEiga{iM« sDlorwing anjr 

miaJtHiOtBt exbelMmf«n iapplicatiotf fiUm tlMe 

iln'' Whoki tile- d«bt ig vested. I teat- 

h Hl BWa p'UBit evw'iiacg 1<C8» wh«u Hideie -iivwp- , 

flln»-iMtioAioet» tlii» Court has giveft the 

eoantenance to sudi an i^lication as the )ffe- 

'' I^, lUsiA that by the statute 1679, e. S, 

after wwrrants de metStatume Ji^te had 

oYa^Bftrom the analogjr <ti acta df 

!'iif^ htif(^ ibe {Kfwer of exercisitig'' kkOl 

In buightf'is ex^flssdylimited and restrkiiedi and 

Him fmeetit ease, if It had ooettrved ia a xoyal 

loras (teQuUf ^fflGch^ed. By that ststote, it is 

that, in amt the debt was asasigiKd tb^aootber, 

'piMlegie vwloflt; and that if a bfnad or bdi^secii- 

!■& Iwm given for the debt, and espeeiaHy^that 

ori-hill Itad' b«ien assigned to tmother^ tibe bnr- 

tcqnldiKit claim the privilege of arreeta^ai of 

under snch- oa application. So that,' 'al- 

t^iMnnublottt right of arrestment, d» nUftU- 

I^MbJI^liM^'wasdiieAy-sapperttd homa^gtB of iwtuHd- 

%>ih:>ii^ btf^fi^ fit h«te it<1«i'd<e«lax«d »y the 

I^Matur^ilMW 8u«b «a «ppHdMi4li to -(li^ is inconi- 

pnioAcrt; :>.h' .'.-mm t; .•> ■-.: : .-, / 

inl(Mki9ai4SeH^>ifr-jdiel(»<tde«Mhg», lasted ^lh^ 
t^oiPaiqHifttlish 4fitiMti'1n}trfaiAi|Cit»i!tts<«s}d'tlMt^-al. 
<filMkt«Mqiii«MMln|iM(ft3i»hl»ivi^<ioG<ich- 
•rni9dui^iMlKCi(iriW(Ki»/'haMng' tlw nhsolttte 

N J 



196 DfiUiaiONa Of'fmR Nf^.| 

Thom«. Others, and Thorn CQuId not' 0Feq«9»y(pJ^^^9]| 

^^^ liAd no right to> disehaige it, and wh^ migji ^ 

Me<&iaih again hare aay. lagbl: to -^e . WU^ imi4 .i^^Mil || 
^'^''' none until he had* pmA CQdupaeiap4:g^t ^^('fll^ 

yet^ nevertittlesa, lie had a su^i^^^t l^^^i^tfj^tfl 
for the waprani aeeiog that^f Ae ^ waam^^ 
by Thorn, and the othtr aocep^, tp.,Q(v;hif9fKlll 
would be M8p<Hi^bIe lr»F it; JS^t jtltiatC$i|irt<ffj| 
in the case of Blade r. Kea^^y, 99^ ^^W^rJ^ 
.tiiat a person atanding hot that aitU8ti9Qvr;h^ 
sudi title; Indeed, that caae Js pr^sely, jnt>,|fi 
. aa the applicant there had a mwk. atfvmgei^|| 
and interest than the petitiofter haa iu tbei prfv^t^fi 
In that case, Bhick, alleging himself to be a crei}^ 
Kennedy, in virtue of a deoree for expenses, in 9IIIK 
tioa against him, applied for a recal of Kepiwil 
aeqaestration, upon the ground, that the coi(C^ 
creditor had been under sentence of fugitajtioi^. jj 
an objection was taken to his title. No do9^f| 
decree he had obtained, for expenses agaii^tv tb£^^ 
rupt bad been allowed to go oiit in, the.c^a^ 
name ; but surely when the persons agai wt wjt^«^ 
expenses had been given were bankrujM:, theagepiilt^ 
neeessorily have had recourse against lus;eag^phfyi 
The Court, however, found that Black ha^siii^ 
-the decree against Kennedy having, ^oue fijxt If^l 
. agenVs name. Certainly that was aa stiroog a. c^ 
.can be conceived, as the persons against whoi9^^ 
agent held the decree for expends bf^ing hfnV.rHf^' 
must i^cessBrily have been entitled to daim i(llV Jl| 
ment from Blacky since he had expended the iBpjO|^ 
his agents and Blaak .waa 4ire0lj li^^ tQ^bJpu rp^ 
cannot l^MEompaDad.^.itilfte :caa« ^of a/Mtt/^V^I 
person who ihaa Jad<mad it aw^ ci|n(n^ W0 9f^,^ 
gence uponr it| Aorrevaii mwive ,]VBiymeojt .of %, ^ 
it be reinvested in him by his paying the debt. 



fk «J- COURT OP SESSttMf . 197 

14i«uuii in :gief j^ewBt case, the petitioner had so »^P«^- >8ta. 
3t:W the iteb^ in queKtioii that, in virtue of^h^^^^ ' 
AiWd^ iMM'hdve apj[>lied fbr sequesrtratioii. Mr Black. 
aJIJ^ so eitpF^ly; and the Words of the statute 3/^JiJ^ 

that fio iterson trh«)8e daihi upon a bauk-^"^^ 

eMhte^ is iMerelf contingent ican- Apfly fw a se- 

66. ' The tredHor in a MH id unquestionably 

>^uppl)r forseq^ledlmtion. Who is that ere- 

' Ss it^hot the^ holder who ish in poesessian, and 

9bdiBr% Ve^^ erery right depending on it ? The 

' wM the onl]^ dredStor \iplio could apply for se- 

ion. It irad'said, hewerer^ that, as a cotttin* 

iaKddffbf, tt^ petitioner might have ranked on the 

tpe^uedtrated estate, and that the last statute 

room for this; but, if the holder had ranked, 

the drawer rank also ? Or, if there had been 

IMorsers, could each of them have ranked ?. or 

ihy^ <me have done it but the real creditor hold- 

antf ^oducing the bHl? This will hardly be 

Upon a depending action, a person may 

lirresbftent and inhibiti<m ; and, if the detrtor is 

ad ifiapkanf lie may even obtain a warrant to 

' Btit wsid it ever heard of that he was en- 

%8 itsk dfligence against the persmi of his debtor ? 

'iW Hear for resisthig any increase of warrants de 

j^^. It is enough that they are grant- 

tBtf/e'tru^'eredftor hoMfaig the debt. If granted 

<i6htl^^ tififms, I do not kno^ where they would 

"fiirtf IfeiiJdbilf^ir^.^I concur in the opinion which 
%yeij Xask delivered. It feteittg admitted that war- 
'UKifiSi^ jtefefa^fif^/fone f^dt are eistraordinary remedies 
^^(W/y d'j>artklt^ 6f the Vi^tdre of cMminal warrants* 

".^^ ^miXi^vi»S^'iA>S^'9ds^ wh^e your Lord. 
mfi\iit Hi^^'^SSisi!^^ tAMnsiderproceedings of 



Its iiBGMiQif & onwrnt ) Ni. w 

Thorn, «. title :cf «lieapplit»tiWiiri)dierfgirt9iof>4die)ppB^ 

MediiMii^ tevptf^tfttlott hitb been iiitr«riablf'^|d]0&-i ui/'iii V .^id) 
^*^' Tb^» waxfrnte^lutT^ iMt teem mtrsidKic^ify itaitiiM 

tb6f were iMMdttc^d iNtb^ codisideffaidei mffioodty at 
first; but we ai^ tioir «a» lo^k' upaa 'timtf ailY]^ttt)oC 
our c6miMh law. \V!c^ oaliiuii^ bov^a*^ iniiDoliU 
ing tliem M erefttM'- by Courts of Ju8tlec(nj#it>b^ 
inftteteriate praetiee, gite a #ffe»nt 1ttt^rprbliitii{tt4| 
tliem, or to thfe rights of <^e {Mirties tinddiithei&jifroHi 
vAiBt we would give if «hey had been the «UrMt^4M»l^ 
feores of statute. If they had been introduatd; by ^Au 
tttte^ and the right had bean g^r^mio }mit aiidJf)»M 
creditors, could any pMSon oentend tfiat, on Mdini 
atatuie» you coald have found that a contingaiKt«M# 
tor, in the situation of the'efaatge^ would -haireBbbiil 
eMitled to apply for this wamnt ? Could, yowilkw 
done so upon the intefpretation of socha atalmli^Ae 
year after it had passed ? But after IS^ yaaoh^iirMl 
tile words, just and lawful ereditfira, had reedva«|ioa^ 
and only one, interpretation, could yon fiadJtbMliiB 
warrant could foe granted to a person ^wb») was: ncM 
just and iMr^l creditor, but who wasot^aaDiMH^ 
g^ht ertiditor ? How does the case stand? Tinai^Mt 
tile lareatlire of statute ; but you Imva omfito^^/ggMi 
itrarrtmts granted 'for 1^0 yevs to jast.aBd liaaift^ 
creditors. One invariable system has bsanvibllowNi 
out for a century and a^half, without aHBaagbilaiS' 
tbority to ediew thaft it has ever been gnntMntoiai^ 
but a just dnd lawful oi^edkitor. :iAl*\^y 

I was tnueh Impnmsfed with the justiosj atitimlttf^ 
ty of this case, that the <;tmrger should ihttra thisiscl- 
medy ^ but I ikgreowilh Lord €arpfaauBe inithiaUog 
that it is 1101 tfais-Cotttt tratiths L^ 
givcthe reHledy* ■ .•^•" '^> '^■- •- -^.'^y t..PKi[--.ii .^-.n- 



9^ n. COURT OF smftioif . IM 



iiitftefeim^^lisli. Thfl^ucgtkite dtpiwAs cwaitirtAy ba ^^' 

|rihflM»mfcli^t^tate»rital»>e>t ttmitiitisf in Ui# bitt as^"^^ 

lovttittfchisit&lmlgMlhis step lor bis B6«^ TJieob*- 

]ic*^ tltt kw&B to^iievMiaeiitfolHr £rQ«9tbeitoiinng vsa* 

iMklr-t^^enp^ oftliedebltf. Tlwife ot^cot would 

|idifeat0dti€'it ivias eoofined sfib^. tP ^iD^eci where a 

prt^iyKliii^fiBr asd li4«»l dn^ ofidebt. Iftjuiiftt 

iMMmidbi.io !<}att(u» iof debt audi aa <lm creditor be^ 

Jipwt^te w«U:&iipded. It lAajr tarti out to be. 21* 

4*tf bqfc .^ftilk if. the d^tor givte his. 911th. nf 

Mrily, the mirrant maf be gnwted^ and atouity: eh- 

T\m.wm aifued iu the caae of Wj^^ Pi 

§lh Feb. 17^9 {^Mar. 8$58)wheroa i^rl^y 

W:a-€faum 4^1181 another, who had been hjs.faotoir 

mJkmmcHf for the pvocieeds ai two ships, aid thahr 

^tigam or f<»r the aum 4f Ir.5000^ as : the amoimt of 

Ikipnifita (Ma that tmusaptiaa. TI^ debtor waa d 

fanilpeivttid. was^apprdbwdad aa ^V fneddtatione/ugm 

n^AAftltbtrm waa:ttliquid4 and thf> oa^h of fhe credi- 

iQ^waa.theaaine aadil tbia (Me. It was. a q^ialified 

eeiii^to tluAMfOMmif if the ddbt id due, then I am the 

Mdita»siandtUaaMiBt aiwayabe the nature of the 

«Mi|jvhcM the debt iailli^iuid. The difficulty was ^at 

iBHtferiat^ that, case tbiot in. the presiBnt^. although.it 

■Miiif aiidiffeMit kind. Th«ce might be na debt 

iatbil^cafie^ and of eourae no oreditor ; but here there 

kaa doiditaa.^«ihe dabt««that a debfr is due. ia. e$^ 

talilidied by the bill ; and ^jottly ijuention Jil» Whether 

<Mut|^ haiiaQckim JttbnrMt jm this Wi m ta allow 

kkft to nso^ :t0.<th» anmedy ?.. 

viii»iiitere8ftdBi9n}& olwr. if Aha bill i^ Aot paid by 

AeaeMt't«^'thi^4fnti^««nwt9i»K i^ "The aath Which 

8378, the debtor was in meditationefuga^ raises the i&« 



10 Dec. im. Ucf^.r,,J^itme^ia9tmwgn <liMMllkN»fdi);^1fdaer 

rirfd«ei himn^iwiMiBedir iMreljf bMMM'ha to netirti^ 
derQfrtbetlaUat4hemaiil«t? lijhinktiibvlfitmiiiiltf 
tUiscMecmiteB 4be title, wbicfa fiiioiild'be>lgo«t<«f!4lM 
eztewt of. aecuiiiig his eyentual rigft*. ' t^^ liMJ<leefr 
fgpnd that idterest does create a>«uilolettt' tMeNft 
secuiaty; Loud Etibaak c^ Bailie, Julyv IfST <3Av^' 
16,130). I observe one case to wbidi I imiAA -ww^D^f 
draw your Lordships attet)tiiMi<Hithe^e6timi4DfiiQe, 
the case of Ross v. Roflfe, 8d Jttne 17fi2 (Mor.l/ftVt) 
It was a esse of this deseription. A clerk in a %Mda|^ 
cpznpgny at Aberdeen was snspecied of embezslfi^ 
tho funds of ih^ company* His cautioners ^apfiiei W 
th^ magistrates for a warrant against hkb, wlkiehw* 
grants, till he found caut^ deyudici& sitti Stfudk9^ 
turn ef^l^ He presenUd^a aaspcosion And liberatioanft 
vacatico. The bill was^rafused ; but^catttSmi restrfefnMt^ 
judicio sisti. A new bill was presented to Lord BkUo^' 
who reported the caae, and staMd ib» only dAub(>t<Abe 
l^ow far the application was competent to' the cshitd^fl*^ 
era. He had no doubt it was competent at- the kiMaiM* 
of the company ; but the Court were tmagrimously of 
opinion that the application was competent -at tli^iiK 
stance of the cautioneirs, and refused the bfflc >< • »» 
\ AH tli^t is sought in auch a case is seeurhy^ ^ The 
acceptor is only bound to fiad ctfutioa dejniicie -mAV 
To be sure, if he cannot fioMl cantito,' be: lausC go'l^ 
prison ; but this is the onlyremedy which the law b^ 
provided* and if it is npt^rrantedi tiie greMest^iiijtify 
may be do^e 



%iR fxivwB'orssmuiit: m 



inditor. No doubt his daim may depend upcor cdii- 

SdppdK*he loani^tb'M 1^ princfi 

.^to^kavetiid eonmtapy^ abd he1ipp(ied 'fo^ 

conld'JttMrsaid that he wad not' e^- 

wktam^Hihrnng^taaiiy a eantliigcM^c^^itcA^, be- 
Mifiliif |lliiiiij[in1 had^BM fled ?— *No judge eodld re^ 
ftM* wttranl ih :aiid]^ a <iase. 
-^EMt prampie of tbe meditaHo/kga warraht in, Yfaat 
siwd is abaut to be ounmitted. When a man c(Ai- 
^RCfe^ebt, he pledges hisjiersoR as well as his "pro- 
prtf^ ^ If ^he wifiidraws either the one or thedth^r, 
hi iBMhMtta a '£raiid. In this ease, the charger has 
snm^that be ia a jnstand lawful credit<H*. That 
iMi> siAeent' answer that this is not an accomnibd- 
ati«Mhi&. It ahows that it wad a true bJU; and ^e 

was «OftitIed to resort to this remedy f<yr Ms 



•«!£ianif M*Kemde.^^l concur in the opinioil expr^ss- 

eityLMdCorehonse. I do not require to go farthiej* 

Ikaa.the praetiee. I consider the' want of practice 

:# any aadi . w«rant6 as the present having been 

gmled as praetiee the oth^r way.* It is a silent 

pnctice wyth malrea law. MedkH^ fi^g^ war- 

iatts have been granted for a century and a half ; and 

Magtliat time obligations simile with the pre- 

«at faaM beea of daily 'o«(Jt*rrerifce. The -same kind 

rf doettoents ae the one founded oil, vii. bills,^tave' 

been long in Uter^ut dttHrig the whole! time there is 

not a single instance of a metRUitiofngdc warrant in 






m nc i ui w fanwfBMroifar i^jduif rawnfcMviiigililiil ffMk 
Blacked ad» MT.oivw ityplM foi? ; I tbiii2t Oirt 1^^ 

Thorn. .;^^ 

*^^ ooiiipetent» I doubt wheiher th^ former t>rafli^(Kift 

cmluiiMforaf««i«le.«eek«' Codfliaer tlieeoae^iMIIs- 
Here 38. m- jqpfiUGilm aft iMtaiiee oClAlPi^CHM 
apda^iAeiaofiiH^tiir ^biifc<lie»;afe;miiV<> tl»w, ip n i i i 
aft.bilb ; haA I aMafrdiltil wiKaot ilo|^HMlth.^ 
dmnrer and ii06«ip(xHr. If we hold ^hnt: th)txf8j(M»t 
petfBt betWMa theduttrar 4nd.49eeplm we^ ««* M4 
tbat itvi» cQBifitteQt te aU Oiq panl^ n^pea^MiMbav 
oa the bill^ atthou^ thejr ace ;90t: in .pcMMttioftMHw 
lull Theeaaeof this charger imy be Ji«dtb«tii»u^ 
there npt have been mat^ nmilar ha«d <Me(i>ia '/tines 
part?.- •••';•» 'ill! 

L^PreMmt. — I eoneur ia the^faniw»%8l«jii^ 
limiM^- The caaae of Qompenaattoii ^MUA^hj i^ 
Coreheuae are all matters of ei:piseatioii by the^iOMeifr 
Ut9L%^.^ ThemmaybemiitiialaMoiiiilabetweeAfan^ 
men, so as to compensate Ae one eNai isHth tbOit^iMb 
btti this relates to the existeme'of. the. d^faBv^-^jftjich 
qniat be^expiacated by the mBJf^BOM^ ItiW-.s^efltiWr 
cessary that it should be clear and certain thfit>i0IW^ 
will be a daim of debt. This remedy is competent 
i^m a elaim oi damsgei tviiieh is «uit». cofttltg^ 
This has beeu decided. . , iiufHMf 

This warrant waa introduced to SMppl|r< a ^fSiff^h 
the law arising from the change in the manners of tbe 
times. The law said, before, that thei^efaan'oftlii 
debtor n^ght be seized if he did not pay his Ael^t ; 
but then it gave the fair debtor due notice by ,th6 
charge of horning, that he might hare time ta collect 
his funds, or that bis friends might come forward to 
assist him. But this remedy was introduced for 
the case of an unfair debtor who wished to make hit 



cndftor or the cantiono: is of no consequenoe. I cifci- »>■ «*• 
inttMiia4««l»utliiit Ibia r«iMdy<'tt«onipetii|it:«»aMMUa(to 

^takMM*'/ ■= • • • ■ •■'•■ 1-..!. ' .••■•'•. ■■ ^'^ 

iMM^teMilt Tl»au»'of 4ax)(W^i»igiite<diffe9«Bt; 
li»<'9af*^ cnrean tiiere tkat h< tiUnks •dainafes «t8 
i|lLii''nc9'-1o«f aol iilttttmt«)f -to fouad'to be dk« ; 
iS^li^tMiy tMiiksPtfaey anreidne ;aMd if they axe dae, 
teli 1blt*peafmai*6 roeeive «li0m. Bttt th* Mtb of wrltjr 
igBAto tti* floes rmimport tfaa* anf «M>t is doe, <« 
«lii>' --v^ %«>4tt«. ' la the one oaae a debt is swon^ to 
Ik^itk^^'ta ilW oaer'it i9 not, because it depends upon 
«MMtf «OBtn^{enciea, It depends on the exiMenee of 
Hbe bill — itd due negociation-^its being free from s&y 
fll»:<if^eMnp«a8ation — npon the acceptor's notratir- 
t%lt;''<aad beirides dl this, it depends on the toatlo* 
gimy'of Hat.dsmww Umsdf bebig aUe to retire the 
Wk'-'>i£ kk» waa wit aUe to retire it, there could be m 
MC-dxtato l^w by the acceptor. 

'«&iNfr CW^fle, Ba%n^ tmd Meduyn, conoarted 
tetlw opinions of the judges who held the appUcatioit 



: i-T-..t.,. , 

^'ifS^Omft, in eonformity with the opinions of dtt 
majority <^ the judges^ found the application ibr the 
mtttm/twmpmmti and refused the bilL 

t.-.S ^ -.. .. :.. 

imd iVinim^OfdiiMif . For Snspendcr, Dean qf Pac. 
•iMofCK^). P, Moberiton, A. SamOkm, W, S. Agent. 
Far CBarmr, Sal Gen. (Hope) D. M'NeUl. J. Stewart 
''■kpau'V. Clerk. 

•-;.; -,5 . . '..•■■ T. 



1 ' 



ioi DEaSIONS OF tHS Mai' 






FIRST mrisro^: 

JAMES M0HT6N, Trtistee on'thef iSeqnestnt!^' 
Estate of William Beown, 

against •.>..->•> 

Messrs HTTNTER and Compakt, Bati^eiv iii(^ 

Ayr. ■ ■ "" 

Weit. — ^Pkoof,^ — Sasine. — STfe omisricm of^ 
ehristian name of the bailie in a sasine does net 
render the instrument null and void; and parole 
proof is competent for removing any uncertidniy as 
to the individual^ which that omission might createl 

In the year 1815, the bankrupt, William BroWii, 
granted an heritable bond and disposition in security; 
m favour of the defenders, on which they were infefc 
The instrument of sasine bears, that Hugh Brown ap^ 
peared as attorney for Messrs Hunter and Comiiaiiy; 
^ and passed with us, and Brown in Duf^bs^ 

^ parish of Stevenston, bailie in tl;Lat part, specially 
^ constituted,* &c. 

' The pursuer, the trustee on Brown's sequestif^t!^ 
estate, brought an action of reduction of this' instird- 
ment on a variety of grounds ; but the only one ne- 
cessary to be noticed was, that the sasine was null aiid 
void from not having inserted in it the christian nad^ 

of the bailie. 

. ; i 

In support of the objection, the pnrBner pleaded^ 
That it was an indispensible solemnity in sasines, that 
the delivery should be made either by the sujperior 
himself, or by some person acting as his bailie. In the 



%«it COmiT OF ssasiQN. f^. 

matmt, it WM essential that the christian name, 8^^^,^^^^ 
idfltbesoni^i^^^thf^^iU^ «lV^ appear on the Norton «u 
ittoftlieinstnun&iit; and, where the name of the^^"*^'»*^ • 
^l9fa8,^0^^}J^ the presumption wa^ that^o ^thl 
idle was jMresent, and, consequently, that no legal in- ^^J^ 
%|0tf v^BSjgiy^. Tl%e ,cirpper> JWW^ q£ thij^ bpUi^ 
«d all the other. 8olemxii^^...of rthe s^ine» must he so 
ioeiirately stated in .thc^ jpstrument as to enable any 
Ifpog «h(^)ia4«n W(er^t to ch pl l gn gg i|;> ^o ascertnw 
lavfrr it eorreetly and wairantably sets forth the res 
galei Stair, B. ii. tit 3» ^ 17, 18, and 19; Ersk 
|kiltit,8,i3^. . 

j^iym answered— 

.^ISiat it vas not essential in point of solemnity that 
4^ christian name of the bailie, who officiates ip tak- 
agsn infeftment, be mentioned in the instrument, 
iCke <he otherwise so described and identified as .t9 
Blot out the person who officiated ; Craig^ H. 7* lib. 
%\ £; Ersk. B. ii. tit. 8, j 3S; Hilton v. Lady 
<Siqfnw,.«4th Feb. 1676, JQ^/. (Mcr. 14, 331) ; Heu- 
^tmao, XMrymple, 8th March 1 776 ; Brown's Supp. 

The porsuar haviqg averred, in point of fact, that 
4N!K..^ere many persons in Dubbs, parish of .$te« 
^Qfrt^D, kpown by the name of Brown ; and the de- 
^<y8,.on the other hand, having averred that there 
^>lwt 09^ person of that name to whpm this design 
tttion applied, the Lord Ordinary,. before answer, al- 
^6d the parties a proof of their respective allegations. 
The import of which, (in the view taken by the ma- 
j^wity id the Court,) was agreeable to the averment 
rfthe defender. 

. Th^feafter^ tl^e' liOtd drdlnary ordered cases to the 



^^^^1^^ GbOrk- Ifpeii admkSng >^idv<it^ 9Mtt iiliwgfmil dby 
Mo!!^[]!f^ Lm^eaUtt^ (iii*onilb8epee{ to tUiidl^i«tkii)>Jkte|t tHi 
Hmrttf,ftis-*Ogprt hddvyreat diffienltsr lb dMdiligttilMMi <»f iili|9 

s^. . ^^^ l»eetl' placai by- cMiaffiMlBg^ dodilou^r /^i^Ia^tBCM 
tweB^^o^eetiotm^ of a nimitar 'n^iutff i ^ ^jUoetti ftuii 
teiA^to htstrunieiits e£ sftsifite ; trndiip otfherB.'thqr koi 
been rapeltedi and m^es snstaiiied, atthoughfllHf ol|^ 
tktais it^ere evett of .a> Btranger^MncL fUan imai ^l u f mni 
oi**4»< Amt iiifitabce, in the ease ^f the Bart olf^fc^H^f 
tida ftad*be6ft the firafteaae wheu* auch asi Ml^aclMn 
had been stated, his Lorddiip wotdd:haf^'hadiia1i0- 
sitotiDU in holdii^ that it was fintal to. the aatfna; btt 
a great diffieolty arose from the foramr. jndgaMafe.* 
IMeed^ teking the whole of the previaiis caflwrto- 
gatiiei^ and partieularljr the Banff ^asea^it vaaian 
jkffitflbla to reeoaoile the co&flieting^ decisioM vbibh 
bad^been pronounced ; and, in order to la/ 4Divfci $Ab» 
general n^ for futnre oases, his Lordship /tha^hl 
^at^ti^ opinion of the Second DiTisiM: and <^4te 
Lords Ordinary should he taken Mr the patntki tilHi 
tirta opinieti, the other Jud^s having coneittarad^m^^iq 

The feUowing question was suhnuttted MK thiiild 
Lcbdablps, vis. ' Whether die omSaeian o£ th^ffihm^ 
' ta» name of the baiUe in ther aeaine iarim^aftiMi 
< vendbrailto sasine nidi and vnid?* ^ i. i }/l o/r>ii 

Tk^ liordsfaips unanimottsty cokiciuredrfailvthfi fiihi 
ICFWlttg opinion-: — .^'• -^^ smnn 

We have compered the revised oaiei^ aad'rlhawi 
eK8miiie<l thtt- iintruBbenA of sdsin ia qfuestiDmrranA^ 
m^ ' of 'O^iaAon; ihat ihe omiasion of the fefamttta aanai 
of the bailie id the seisin doe^ not rettdar-tba ihstitwi 
nieAt Qu)l ud' vnidi •.'!' -T-ii;, , i. ;,• i,.,.i .uyuljAl 

TIte ahtkerity t« i^tft ioraratfiiMhiltfa^jraBiaienaof^ 



».A OOORT or SESSION. «07 

HitHpakr or grtaitor Vif the.dted»»» aa^gxpreflscdidn ^^> ^ y 
iii|iteip&ii]f seiaflv. (The pvotq>t>murt'Q^tiu^ 
fMllnnalate/td'tbis effedr; ittatoaiggwral »airOTa, ^"^^'» ^' 
l i iiUi tampie^i wilH iaflfati y but thd>aiuie of i the. peru irrit 
«l^>teiwli0nL:tiBg> maiidfirte< isv<KMttimt4ed|ri0 lefib^^^. 

WodeiriBdM ip]Mq[>tw:iiai£^^ 'Afo Walter Bow 

Md^MaAm tiia smniier iit:ii4iicliitfaiftbU9|9e9aia 

jhnMi i JHht il : rf • The fo8t;xiiay0Biaiik*i» .nmde by tfie* 

Vfutfiiat h]a^attciniejr» poBBewpi: '0£ -the ckaitar ' 

*w>*aiym'ilifi fntepL He nqninii tl«t rttendM^ 

^aiDotarjr^imliHe to certifir &e dct. They* aeoo^ 

^ nrtufr «f tbe blank left in Oie pi^oept for <&e 

'4iBM;.4lipoae a penon to fill that oflk^t aid «et 

^«itoe«e» to attest the whde fmi:^^B0^^ LedtiMK 

irt. iwp. 178. it seems snffimftt^ thesefeM^ firatf for 

Matingf the act of the battle, that the precapt^ 

aUa shoidd be delivered to a paitkadar penoo, tna 

Mttir whom, different from the attorneys and m.^, 

MM» sfld basded orer by this individual^ wboevar. 

Wmaybtti to the person who acts as attora^i ;io: 

IRsence of the witnesses ; and that, dSt& thej^pveoept 

h» been read by the attorney, the person acting aa 

Uift MiTet Ae' symbols ; mid it saems saffioieiit, 

Nonidlf^ifor r^dderii^ these acts authentiqjr thittt^ 

Mfey^;{li<lhe itiatarutntot and doquet, attest tfaeMr to 

ba^ been done by a certain person offieiatiag ashoiiie. 

lie name of this person must, indeed, be given, and 

Ha nd/dsiibt usual and proper ta Insert the Christian 

iisi&e as well as surname ; but this doesadt app9wr to 

>*'Bdiipni8aldei,'if jl is asaetted oia.lSie dice 4i£ the in- 

*RBiM^}«nd atteatedr m the do^ivt*; that a«eei;lma 

PMaihaatMaabaiUeimgmngas^ aad^if thi# 

i^iidiiaillsad^ideaQldhed^dhabifae^mdy be to^ 

fotingnished from others. There fcia- (Sasa tqpiort«fl 

^Bhislea.wUah ittaikrattii ttttetpiindidea^^ hf prov^ 



m^ DBcisiONs or the No.^ 

10 Bee. lass, j^g^ that even a mistake conuriitted by the noCaiy in 
MOTtott »r "*«'^t'^ning the name of the person wlio alstuaU^gifltt 
Hunter, &c. seisin as bailie, and confoonding Mm with ihtr attoracf , 
f^^ will not invalidate the infeftmeiit, if ft'appear from 

sH^ other parts of the seisin that there Were actually tM 
different persons employed, one ds attorney; and die 
other as bailie. * The Lady Cheynes being inleft ii 

* an annualrent upon a right granted by her husbtiiA, 

* her seisin wais questioned upon these grounds ; lA 
' That it was null, in so far as the bailie and the at- 
^ torney in the seisin were one person, who could sot 
' give and take the seisin/ &€. * The Lords, in res^ 
' it did appear evidently that it was a mistake of the 

* notar, that the seisin did bear the same person tole 
*' both bailie and attorney in the clause of tradition, 

* and seeing, by the first part of the seisin, it was dear 

* that there was a distinct attorney, who did present 

* the seisin to the bailie, did therefore incline to sua- 

* tain the seisin,' &c. ^' 

In the present case, a parple proof has been rendered 
competent and necessary, because the purpose of it is 
not to contradict the written instrument, but to explain 
an omission in it, and because one of the reoBmB of 
reduction libels, ' That the bailie is not so designed 

* as to point out the person, or give any information 
^^ who the bailie was, there being in the parish of 
'* Stevenston two places called Dubbs,' &c. Now, it 
apl|»ear8 from the proof, that the person who is said to 
have acted as bailie in giving infeftment was little 
known by his christian name ; but that in order, in 
all probability, to distinguish him from others of the 
same surname, who lived at no great distance from 
him, (though not on the same farm, nor in the same 
parish,) he wa^ generally designated ' Old Brown in 
Dubb^,' or ' Old Dubbs,' or * Brown of Dubbs, in the 
< patisb of Stevenston,' or ' Brown in Dubbt ;* defen- 



5^WW%W4^¥{/^V3fiTj49^^^^ t^^' Cir- Morton „. 

^ |»^^vjllj^ j^^ jU^ii^Uy giyen V> nim in 
^^ifllj^ yb!?A^^^^/^ had either 

\^^ljpijbis^;a^v^^ known 

j^^t ^he Qmji^ion in qufstion' has occurred,. 

th^ eas^ came agaii^ to be adyjs^d with these 
^J^^rd Crqigie observed — That, although the 
[ladjM^n already decided by a great jnajority of 
"t, he thought it right, in a question of" hq - 
importaiice, to say that his opinion was alto- 
r [^Serent. Taking the case independently of 
MTol^^ the judgmeni; must proceed upon 

ground that it was not necessary^ in ai) instru- 
of sasine, to mention the christian naine .of 
But this he conceived to be^.aitogether 
VI instrument of sasine^ ,b^ing an actus . 
in .which the christian <riames as well as 
Sibn^aines^of all the patties, ^lecessary to per- 
"^'Ithe, several duties assigned to them were es- 
lu tile case of a bond, bearing a clause of 
^on. It migh^ a^ well be contended that the 
injiames of the Advocate^ acting as procurators 
%e omitted jn the decree of registration. Again^ 
that th^ instrument, as it stood, was radically- 
ve, h^L^.thought that a parole proof was alto- 
madmissible. It was so in every private 
[ig irequiring £hc solemnities of the ]aw, and still 
VmiiTaWlUdQ in^^^ such as an instrument bf' 

til'*"' K 'wQ'^''*» ^"^^^^^ he liiost inexpedient in 
^ case fp ehcojuriai^e parties to tAy upon the eic- ' 
pectation o^psuile proofi'Whfih in a few years could 

O 



iZii^J 



21D 



DECISIONS OF THE 



No. ss: 



--J 



WHL 
Prcof, 
Saline, 



10 Dec. i«M. Qot b^ obtained. In several late iRfttancee, it wm 
Morton wT thought that the Court had gone too far in disregaid-. 
Hu nto, st c ijjg objections of this nature ; and he had hoped thai| 
their Lordships had determined in future cases t6 adhme' 
to the known forms of public instruments, as neeessarjif 
for the general security ; and he trusted that tlie qucifi^ 
tion would be carried to a higher tribunal, where soine 
general rule or principle of decision might be defini- 
tively laid down. If the present judgment nvere to be 
adhered to^ it would be better, and would save imneees- 
sary expense, if^ instead of an instrument of sa^ioc^ 
the person delivering infeftm^t should, in a docquet 
upon the warrant for the sasine, merely note the date 
of the infeftment, and the names of the witnesses pre* 
sent. 

Zjord GiUies was of the same opinion ; and thought 
that, if such were the present state of the law, the al* 
teration suggested by Lord Craigie might be an expe* 
dient one. 

* The Lard President concurred ; and observed AW' 
the insertion of the Christian name of the bailie afford- 
ed a chec^ against forgery, which did not appear to 
have been attended to by the other Judges. The 
Christian name of the attorney mi^t next be left oit^'' 
as well as that of the bailie ; and hisi Lordship would 
wish to asfc whether, upon the same principle, the 
Christian name of the superior or disponed himsdK^ 
might not alse be omitted. He was for sustailitiig 
the objection ) but the majority of 'the Court 'hM! 
thought etftierwise. In reference to what had fWtei 
from Lord Craigie, his Lordship t^bserved, that th^ 
mi^ht be eircumstanees in which parole proof tiiigBt 
be competent. For instance, if the namie of 3fV&i 
Bi*own had been inserted, and there had been several 
John Browns in the place, it might be competent^ ^ 
parolfe proof, to identify the individual. SftcK eW-?' 
dence was admissible in a question of identity. 



• i. *i 



No. tt. COURT OP SESSlCm: 211 

tWito«le piMf wouM'be eompeient ia a qtiestkm of jf"^ ~ 
MiiBl^ ; But flbat was not the ease here. The defect ^" "t"' * » 
a^ m X oil the fe« <rf tlie deed iGsell', and not frbmirru. 
taiuu i iU i ctrtoawtances. ^;|^ 

7)iM[.ftEi%9^ c(mcutz«d In the opinion deUrered 
bf ^ (owolted J^n^^ 

Tfe CwrTnp^ed the objection. ' ' 

Act Dam ef FnuL fMotuirHfr) ' 

AOeik. 



MJMlM, OnMiiiij. Act Dam tf Fmc. (MonerHJf) 
'AfUwsi^JKMr. ITdltor-Cbal^ W.. S. Ani^ Alt 
Amoa» .Camm, Jkna^tfn * Bamao^,' W. S. Agento. 



•■ ■ C. 

■I ■> »i' T il l t 

SJECojyjD mrisioN. 

N9.XXIX. 10 Xhemier 192S. 

WIGHT 
I ugatitft 

' FQR1IAN» Trostee^on the Seqn^trat^ Estate of 
William FooTK. 

9tfjt,^jf^4qtf,hiwiiig]ken affimed to takepatges- 
imtV the,nUm^, ^ Ma trade, i^pm a contract 
lfb^tim»b$a^^der4mobligaiimtopitnsiMethem 
kf^o(rtmime,atuJmdfH€€-J^fdf in a question 
l/i*^^^ ^ediior* md tite edter^ qfter the term 
im^ia»eMeiapeedt4hiiaihi>trtm^erenc9 qfthe . 
rnferty uxunupended tiU payment qf the price. 

WipHX^,^li9 vras priiicip^ tacksmaB of the distilteiy 
^ Cbii^<*9n, graQ«Qili. ft 8«b-faw9e of it to William 
'oote, and «fr ^e same time put him in possession of 

2 - ' 



man. 



2ia DECISIONS pp THE No. Sfc - 

'^>S!Ll!? ^^^ utensils, by a missive in the following terms t^ 
Wight V Vor. * loth February 182S. — ^Mr Will la.m Foote.— Sa/ . 

^ I hereby assign and make over to ybu the uteosSs,^ 
Sai^ * &€r belonging to me ib the distillery of Qrmiston, 

^ conform to the inventory thereof, which I purchased , 

* and paid for at the excise sale upon the 2d day of 
' July last, amounting to the siun of L.190, fortlM ' 
^ use of which you are to pay me at the rite of 8 per 
' cent per annum during the period you retain tke 

* same ; and you are to be obliged to keep the same 
' in use, ani} leave the same in perfect good Qtdoi^aQi' 
' condition at the sight of two neutrai people, one to 
' be chosen by you, and the other by me, wi& power 

* to them to choose their oversman, and to make up 
' such repairs as may be found requisite and necessary 
' by said arbiters : And it is farther hereby declared 
' and understood, that you are to be obliged to take 

* the said utensils betwixt the term of Martinmas 
' 1824 at the amolcmt of what I paid for the 8anie,.«t 

* which period the payment, 8 per cent will cease 
^ upon said amounts.' ^^ 

In 1825, Mr Wight applied for a sequestration 
against Foote, in security of .the current rent» and 
thus attached aU the stock and prt^rty belonging fo 
Foote in the distillery for the amount of the rent 
Foote having then become bankrupt* hisv estate was 
sequestrated ; and Fqrman, who was appointe^^udfdal 
trustee, proceeded to take steps to sell all the at^ils 
of the distillery, upon the understanding that the pfo* 
ceeds should be applied, in the first place,, to pay Mr 
Wight any sum to which be jshould be found to ha^e 
acquired a legal preference in consequence of the se- 
questration used by him. 

The price of the utensils, pyrctiased by Mr Wight 
at the excise sale in 1822, and assigned by hira» by 
tlie above missive, to his sub40iant, had not yet been 



Ha » COURT OP SESSION. 218 

pndbfFoote, although he had continued to possess ^^p^- i82«. 
ttoi^ and to occupy the distillery subsequent to the ^^rj^.^t v. For- 

fantafMaithaiBas 1824. *^"^ 

Wi^^ now claimed the property of these utensils, smu. 
iathe ground that the sale to Foote, contemplated in 
Aedx>Te missive^ had nerer been completed by payment 
tf tbe price ; and applied, by bill of suspension and in- 
tofict, to prevent the trustee on the bankrupt estate 
frem bringing tiiem to sale. The bill having been 
fMed on caution, the Lord Ordinary, in the process 
^mupeasUmj jirononneed the following interlocutor: 
' Finds, that the diarger does not claim the articles 

* vUdi Were sold by Mr Tweedie to the suspender in 

* DMember 1829 ; and, therefore, to that extent sus^ 
'peods the letters MnpUciter; declares the interdict 
' perpetual, and decerns : But finds, that the articles 

* purchased by the suspender,- at the sale made 2d 
' July 1822, by the officers of excise, were by hini 
' tnnsfeiTed. to William Foote, for whose creditor^ 

* the respondent is trustee, by a sale to take effect at 
' the term of Martinmas 1824, and that there was in 

* the missive of sale, wbidi is dated 10th February 

* 182S, no eoDditiim suspensive of the sale, depend- 

* ii^; on the price being paid ; but, on the contrary, 

* that the sale was then absolute ; and the considera- 
' tioD payable by the said William Foote, for the use 
'"^ said artides, being 8 per cent on the price paid 

* fcr them af the said sale by the officers of extise, 

* ^tt then to cease ; and as it appears that the said 

* ^imiiam Foote continued in the said distillery till after 
' Maitnmias 1824, and that rent was paid for it even 
^ tin Martinmas 1825, iinds the letters orderly' pro- 
' ceeded to the extent of these articles last described ; 
' ttedk Che intiirdict in so fieur as relates to them, and 
' deeems ;. resetviog to the suspender to claim in the 
' iequeitiatiott of said Foote's estate for the stipula- 



914 BECiaiONS OF THE 1$». 9^ 

^9^^^^^ ' ted price of said articles, if Im) shaU Imi m adtited/ 
Wight V. For. His Lordship added the feUawing note i-^' AUhoiigh 

'"^": • the letted, 10th February 1883, begins mth^Oi^ 

sak. ' words, ' I hereby assign and mate ovey ta 9?^Mi/tbe 
'' utensils^' &c. the Jbord Ocduary. thinici that tlm 

* conveyance,. depre^mUi^ was qu^ified^by th^.^lSlir 
' part of the same letterv which deckred that i^fsl^ 
^ was to take effect at Martinmaa 1*824!, ^d. tl^. j^ 

* ment of ^per cent, of tbeijr price^ af the conaid^ 
' tion for the use of ttens^ wns then tQ c^a/9fl. U it' 

* were to be considered that tbe sale wqs imwif^istfik 
' taking piece at 10tbJ^ehraaryl8S3» and |payiw#nt<tf 

* S per cent, was to qrat^ue till AfartienMia 182^ tbs 
' bargain wou][d have b^n usurious, whidb, in duUo^ 

* oiJ^ht:not to b6 prwumed, for the suqmider wobM 
' have fprf^ted his rjgfat <^ recovering the prica 
' The Iford Ordinary, therefore, hoLd^ that the sali 

< took place at Martinnaa 1834» and that its efficacy 

< in no way depended on the fact wh^th<;r the price 

* should then be paid or not' 

The susp^fier reqkiimed; and tke Court alteM 
the interloicutor, suspended tiie letters,, and made the 
interdict perpetual. 

L^^rd AUawmf. — ^I fee| tome difScfulty. as to the 
terms used in tlie inifBs^ve of 10th February 1823) 
partijcularly the last ^laufeef it» upon ^e construe* 
tion o£ which the deijcision of this g^ieation m^ 
entirely depend* B«t I tJuak ib^t, qo.aate wa^jwfk 
at the timei nor intended by tibe parties jto takapltci 
till the price should be paid ; and the trustee. on tbr 
bankrupt e9t«te, who ia only the judicial assiig^ ^ 
Footei canopt ^a tt||& i^operty witb^^t eomi^^ 
with the cwditwi itf the rai^^ive, hy^ paj|M§ tht^^rtiPU'* 
lated prieci 



Jfc.«. COU»T OF SBSSIOK Kt5 

Urd 6lei9lee,^Tbe Lord Ordiniuy has intimated i« ^^ i<»«- 
IfcH i i Mon that tlwM vnm BO'.Unmedtate mlo efifeeted w%btCFor. 
*ik$4ii$e^ih^miaAte, and that If there had, the°" ^ 
M^iMmh Ibr 8|i#r e«ML vranU have been uaarious ; ^^. 
httU itutkB th0 althdu^ thctte WM no sale then 
<ai|i)eto^itiiere Waa B valid cdntract of ade entered 
mt^ bffAinii Ai» teaeftrenoe of the ftoferif wds 
t^tai^ plaee at Marti^nias 1SS4 ; and tli^ qaestlon is, 
lAetfMr the eWgatictt to piqr tiie price was et^idated 
«l^coniilioiietiqiteai?teof tkesaie. This ii attend- 
eiUfi&^eiwiidenMe dilB<^tf. 
/n» Zeivi^ JuHke^Clerk and PitmOf coneorred 
vilhLoriAliomijr. 

lad CMinai^rt Crmgktie. Act. SoL^Gcn. (Hope) 

Shaw. Alt. 5fc^7i^, ^. M'Keia. C. Stewarty W. S. 
and J7. Jgennedv^Vf. S. Agents. T. Cletk. 

u. • 



SECOND DIVISION. 

Na XXX. 11 Deember 1898. 

LADY FAIRFAX AND Otheks 

6R£ENSHIl^U)ek 

iv^ftttHc¥.^i«>-FftMB8d>^^ tenant lumng^ m vMa- 
^tfkig lease, and without hU landhrd'e kncM- 
. ^igt, uedd Bte(^on$^ trnUt by himeelf, for purposes 
' Wfgsd to beunMisanee^ it is wmpetent to make the 
kanttsrd s party to an application for interdiot, 
^tkot^hehastrnt reeeiwd any previous notice or 
eoofUmt respectit^ the tenants operation^. 



316 MOiSlONd OP THE No. 9JK 

^!J^v^* Mb Greenshields is proprietoir of two^faMseB-^ H* 
Fairfax, &C.0. New Town of EdinbuFgh yrikiciienUatiiowL tlieBteeeA^ 
Greenshieids. ^^^ apartments bdow which ^ter fbott a lone.- «!* 
Interdict. houses cousist of the first floors aUd- stiidc'«tdfie»«of 
'^^**' a large tenement, of which the floors abov^beknig 
to the suspenders, the other parties iA this adtioB. 
Mr Greenshieids let the sunk apartments enteriftl^ 
from the lane to one Gibson, a pliimhler, wlio^wtti 
expressly taken. l^ound to use the' apartm^ata 'tinly 
for lawful purposes, Mr Greensbidtds beings- kd 4d 
believe that Gibson meant to use them chiefij * for 
keeping goods, and receiving orders. Hie t»iant; 
however, without the landlord's knowledge or consexill^ 
erected furnaces for smelting lead, and made a ccAn- 
munication for them with some of the main. Vents of 
the tenement. On one occasion, the use of the fiima^ 
ces conveyed, in this manner, to the whole upper floors 
an excessive degree of beat, causing great alarm to the 
suspenders for the safety of their property. Of this, 
however, the pursuers made no complaint to the land* 
lord ; but presented a bill of suspension and interdict 
both i^ainst him and his tenants, concluding that tfa^ 
defenders should be interdicted from using the for* 
naces, and ordained to take them down. 

Separate appearance was made for the landlord and 
his tenants. The latter, however, did not resist the 
granting of an interdict against them, and stated that 
they had removed the furnace diat had occasioned alam 
to the suspenders. 

But, for the landlord, it was contended, that it was 
incompetent to make him a party to the proceedingy 
and that it ought to be dismissed with expenses so 
far as it applied to him ; because, whether the teiumts 
were blameable or not, there were no ground!^ for in- 
ferring responsibility against him. According to the 



110.90. CSOURT OF SESSION. 217 

^mmg of the suspenders, the tenants alone were M ]>ec. iG2e. 
fe vm^Mdocn, it being admitted that the land-^.J^'^ ^ 
Mi mote vahiable property -Wb^ piadsd In equal and Gr^enshieidi. 
aliiiimre'iininediate'dang«^ thtotheii' ovm ; and "the ^^^^^^.^ 
nfe flf tar taid siibstaiftial'Jnstice^ is that, c«^ tenet ^'^^^ 
mmmuimtt. The oifly cases in wbi^b alatidlord 
CHI be made UaUe for the act of his tenant are either 
vkn lie lets prepeityfor an Illegal purpose, oi when, 
ifteraotice bas been jg^i^en that his tendiit is making 
ai fflegd iBe of the pi'operty, In^ takes no steps to tor- 
mterrestettn the iUegaliiy. And neither of these 
c to Bi iitm iees can be alleged in the present ease ; Vans 
f.]lilBdgoWiie, July leil, Wd.IHet ("ilfor. 18,984)'; 
Wm^fLaw^ LandhrdandTenanf)p:7e. 

Snspeosion »id interdict is a prohibitory process ; 
kt,in the dreiunstances of this case, it wotild be absurcl 
to ordain the landlord either to desist from using ttie 
frnaces, or to demoUsb them. A landlord is not en- 
titled, without the tenant's leave, to enter the subjects 
ht ; flcad he has no power to control the tenant's manner 
rf oerapaney otherwise than by judicial proceedings. 

But even supposing the competency of calling the 
laiflord, still he ought to be found entitled to his eit- 
peases, in respect that the suspenders did not com- 
phin to him in the first instance, or notify Iheir in- 
tention to institute this proceeding. 

- TkeffiAi^Aiaers answereiJU-Diere could be no doubt 
of die eampetency of calling the landlord, or rather it 
Wis knperative on them' to do so in an application for 
a perpetual interdict, which, in the circumstances of 
flris cffle, they were unquestionably entitled to ask.'' 
The landlord must always have a material interest 
IB any {HTOceeding the object of whidi is designed to 
wtriet the useto of his property* If, in tjiis instance, 
<he hmdloid had not b^ made a party, no interdict 
^ch' the pursuers could obtain wouM havi* bcrn n 



ttS aQQOiBK»» or TfflB Katt 

^\^^^^^^^^ efftetual pnliibitiou against kia Itttiagde 
Fairfax, jt% tLpremiflea cm any futiufe ooeaaion fof pupoaaaaim^ 
^^'*^ °***^ ^^ to those amqdainedo^ Aa interdkt against thepc^ 
inmrmA seat tenants would be no rer^'iM&ato against the laai- 
*•««* lowl; Fleninir v. lira, ft4th Feb; 1750, (Mar. 

The Iiord Ordinary pronounoed thia intarioMitw^- 
^ In respect it was eompeteat in this ease te^vaahe the 
' landlord a partf, whera^ ea intinniict waa ttyivid 
' against certain operationa of hia tenantar and titft 

* Ae tenants have allowed intardiet to be prnmomMl 
' against them, imd that ibe landlord doea ma i^ 

* sist upon shewing that what they did ^ Waa not i 

* nuisanee, of which the sospendenr were etatitiid to 
' complain, suspends the letters simpliciter i deetanfe 
^ the interdict perpetual, and decemaj fiada tkaa» 
^ panders entitled to ezpenaest 4(e/ 

The landlord hating re elmm^d 

The Court, in respect that the dum i» exfum 
is limited to those occasioned bf the pleadiiiga'^iii'tbe 
competenqr of the original applicaticm i^g*iMt life 
landlord, adhered to the kiterlocutor of the Lofd Or- 
dinary. 

. nV 

The Lord JusHce-Oerk saidr-^That although tbe 
4^partments were let * for lawful purpotes,* it^wWlm* 
possible to overiook that they were let to planitMi|» 
who were left to judge of the lawfulnesa of their o«* 
operations. The suspenders, in the circumstances of 
^ this case, were entitled to have, not only the anncj* 
ance complained of put down, but to a perpetual in* 
terdicti and^ in that view, it was not merely cpInp^ 
tent, but necessary, that the landlord should hM.^ 
been calle<l. If^ indeed, ha had come foewacd and 
stated, that he didn^t olgect to the interdict goipgout 



wkM. (mmtowmmism tit 



thHiwt <wly to thecondHct of Ae smpenAesn ^ \^ ^ 
icaliou ^thont gi^i« him iweTioiis f^Ax, 4«. «. 
i«f Ae MMi.Kf VUHfHtiim^ im.t9iM not haveQ"»«^^"* 
!■■ ianadliaUefiEHr anj.partof Uieaqpenses. luttrjict. 

MdHfd rftmn im of the game opiiuom TlKljMl^-''"'^ 
lord was wrong in remstimg a decree in this case that 
ihoald affect him. Ctt9 JSPQ^ be ctmceived -vYneace 
the laadkwd has noHiijig <fc4» with the op«rati<ws of 
Us teoaat that ha;^^ KfiftOu ^und for oomptaiat. 
Bat wfaei^ as jm this oa«^ huildiogs are ereoted by 

#HmfliHNi» l» <ibe MJgHiMibff^^. tj^ ^nmsi^^cy 
tf.aifci«Kiitfi«vIll9dM a. piwtgr «► aw^aftove^ding 
ailte. fdMSA^viMVI be ^«ul»M» . 
. Aowt J<fcli% «»»wnM* ISiw(» thf landlprdwas 
«Mil»* yattgf»lisflhQ«idh#iElk alt mms esme .fixmard 
aad dedared that he did not sanction hls.tanairt's {vo- 
eeedings, and did not object to the interdict going- out 
tBritnLhOiwitf. . A«^4f l» h#d. f«ttMKed.|his cewsn 
ha <Wtfi.ta«».h»>. jfi t M t d. t»Jm. 99m9k qP.^M 
-IW^ W ^ Ml h^d .m4, mada a^ pre* 
;4a»hMB: with regpsd to the matter 



TletantaQba^enttiMS wi«».^if^ta^Jn, the £Ke of 
thihai% wlackik wm ak^ttaffeqAm! own £»iilt if 
ikif. Ww» wtk.motm»i. h«ftr« jmlfuitf i Agamst hin 
l« «k. iiMler«Mk Tht mi)lca^e% ii;i^m4t,ju^ p^ 
YMBi iMiftaltaB itt tha ItHwilnirdi anpffartd ta hk 

9eBL K.\ A. Kenne^j, W. S. Agents. For the Re- 
Ageat. r. CteiL 



S90 DECISIONS OF THB Va ^ 



SECOND DIVISION. , 

No. XXXI. \%Dec0mber \9aiL\ 

SCOTT \ 

BROWN. . ,, 

Bill of Exchang]&w^Aojtjdication.7^L. ^ Jii| 
of exchange ie not preserpedjirom the eexenmi^ 
preecriptkm by the registration ^ a protest. VU 
An adjudkatum led upon a bill and registered pnh 
teetf after the sexennial prescription hoe rmn^ and 
without ofi^ previous decree constituting the d^if^ 
in^ectual. 4 

RoBEKT Dow graated a bill for L.80.rll8. 8}d. dated 
29th October 1803; and payaUe atlfartiiuiiaifollow« 
ing, to George Brown. This bill waa protestedafitoP 
it became due, and the protest was registered in A* 
sheriff-court books of Perth on the Slst April ISOJb 
On the 5th October 1816, George Brown assigned the 
bill, by an indorsation written on the back of the iiii^ 
strument of protest, to his brother, who thereupon lot 
an adjudicalion against Dow^ and cdiytainad a deqtf 
on the 14th February 1817» in absence, adjudgniff 
the subjects described in the euitunons, for the ae^ 
cumulated sum of L.3fi, being the prindpaLsum in tlM 
1>ill, together with charges of protest. Sec and anni^ 
rents since Martinmas 1802* No decree of coostitu? 
tion of the debt was previously obtained, nor did tlie 
smnmqns of adjudication contain any conclusioa to 
that effect. 



I 



Jfo; Jl: COimT <MP SESSION^ ^ «» 

Nofiirdie^ step wae taken lA regard to the debt i^^ec^a 
dnuf the life of Dow, except a charge given to the 3^^ ^ 
nspenders on the decree of adjudication. Bto wiu 

^Boiraftenirards died, leaving his affairs in great jij^q^^^. 
oAaiMBment; and having executed a general dis-^^^^fonrtmi, 
po8itk« in farour of Scott, as trustee fbr his creditoES 
anl&imljr, Scott raised an action of reduction of the 
a^Bdication obtained by Brovm, on the ground that 
the bin was not preserved from prescription, by the 
ispBtaation of the protest without further diligenpe^ 
aid Oat it was not competent to adjudge for the 
d^ contents of a prescribed bill without a pre** 
viiNtt kgal oonsthntion of the debt. 

The Lord Ordinaiy pronounced the following in-* 
ferioeotor: — ^ Finds/ that the adjudication under re« 

* duction, being led on a bill long after the sexennial 
'prescription had run, and without any previous de» 

* Me constituting the debt having been obtained, is 
\ta)t effectual ; therefore, repels the defences ; and 
^ftihrteSy decerns, and declares, in terms of the 

The defender reclaimed, and pleaded-^Thst the>e- 
gistiation of a jirotest In the books of a competent 
/0%ei8 a decree which preserves a bill from the 
iteanifll prescription, especially in the books of an' 
arferior court, where the warrant of the judge for' 
ffligence is always ititerponed in the register to the "^ 

protest. The opinion said to have been expressed in 
fte case of Douglas, Heron, and Company, t. Rich- 
ofcoB, 26th Nov. 1784 (Mar. 11,127) was not neces- 
ttiy for the decision of that case, where bills were 
feond to be preserved from prescription on another 
ground. And the dicta of institutional writers on the 



8M 



DfiCfSK)N8 OP TRK 



vks 



i 



19l>ee.t«9& 



Scott V. 
Brown- 
Biff ({f^jr, 
change. 



subject ef bills of 4»ciiailg«i, M t» tliii pcliit» ite b«| 
fttpparted by aA]^^ 



The ^ui«iM ilTiMP^fi^il-^The m€A ragkrtn^Ki iAi 
proteift Ifoeft ndt ^re^erve a14il fifonii {^eAca^^Hdii r<tti< 
the k^ bais beea tinderistood to be cOfeptetcSy Mttl^ 
(m this )[K>iiit ever sinee the epfaiioiti eMj^sM^ b^ tbi 
Ocmrt Ih tbe case of Dbtigtas, Itaron, abd Ce/mytafi 
ia 17B4. The nsasen apparenflf wbjr tb^re are 
lalel* decisions ii, that no doubt bas evex^ be^ 
tained on the subject. Indeed the words* of 
statiat^ require that dilfgenee sbidl be executed In bi 
to save a bill from the sexennial limitation ; and {file 
most that the counsel, who pleaded the case of Dou^las^ 
HeTOD, and Coinpany, eould pretend to make of th^ 
re^iMered pIMest, was to eall it ^ a preparation i^ 
• the exeeut^n of dillgenee/ 

7%&ChuH tioMtnimettsljr teftised the note, rad hdd 
timt Ihb qiie^m wo«dd adniit of TO 



Murray 9 J* S. More. 
and Partyf Agents. 



IhmiId9on^Boms^'Yf.^ 
F. Clerk. 

U. 



^ 



t n% ' * ' f * i i f* iu w 



■ It IIP ^■^■^wwwww 



4 n* defender tdsoendeavMUPed t« nise a fdea upon allied admMoM 
iHiiurrwifiillvi 



:^ 



IfeSJ. COUBT OP OTJ8SION. 2«S - 

SECOND BiriSION. 

U XXXIL It JDecemher 1828- 

POLLOCK AjjTD DICKSON 

against 

M^ANDEEW. 

Yiwi^^^Parole evidence is not competent to render 
i^bttte, as to quantity or number, a written con^ 
kad which is otherwise specific and free from am^ 



Pollock and Dickson brought an action before the 
riMf of Lanarkshire against M^Andrew, setthig forth 
dnt they, baring contracted with John McGregor, of 
UTiBhangh Printfield^ to lay 240 yards of cast-iron 
pipes on his premises, entered into a sub-contract with^ 
tk defender to furnish this number and description 
tf4ripe8 \ That, accordingly, the defender, after being 
mdeacquafaited with the' nature and extent of the 
pDisBers* agreement with McGregor, addressed to them 
a letter in the following terms : — ^ I hereby make 
' (tfer to famish you witii eastjron {Mpes, nine inches 
' in diameter, at the rate of 18s. per yard, or at 12s. 
' per cwt-p-the pipes to be nine feet 1(»^» and to 
' veigfa about four and one-half cwt. The money to 
* be paid cash^ without any discount ;^ which offer the 
ponneis accepted by a writing annexed to the letter : 
1^ in pursuance of this agreement, the defender 
^umshed the pursuers with from ten to tbirty of 
Acse pipes ; but declined to fumirii more^ on the pre- 
tence that his offer specified no particular number to 
fce delivered. The pursuers, therefore, concluded that 
tte defender should, be ordained to ftirnish the re- 



SS4 DBOKIONS OP , THE ^q. ^ 

^^w^lw* "^ai'ider of the 240 pipes, according to the terras of 
Pollock, *c. ». the original agreement, (which they offered to prove 
M'Andrew. jjy parole evidence) and, further, be subjected in da- 
i»roqf. mages for his previous breach of contract 

Amongst other defences, it was pleaded, that the 
agreement between the parties being constituted by 
writing, the terms of which were clear and explicit, it 
was incompetent to exjdain, extend, or add to it by 
the evidence of witnesses. The Sheriff, inter alia, 
fpimd that the agreement^ being constituted by a re« 
gular offer an4 acceptance in writing, it was not com- 
petent to explain or amend the terms of these docu- 
ments by parole evidence ; and assoilzied the defender. 
In an advocation of the Sheriff's judgment, the Lord 
prdinarypronoanced this interlocutor: — -* Although.^ 
Vthe jLord Ordinary does not assent to the broa4 
* . principle laid down in the interlocutor of the Sheriff,. 
^ . that it is incompetent to allow a parole proof in anj: 
*,case where there is^ ^ritten agreement of parses;,; 
' yet, in this case, is of opinion, that as .t)ie s^eement 
' libelled on is only for pipes of a certain deseriptioDf 
\ and for a certain price,, yet as there is so specifica<t; 
V tion of the number to be furnished, and, what is o£, 
\ equal importance^i.the time within which they were; 

* to be furnished, that to allow a parole proof w^ul^: 

* be to raise up. an agreement which was not in con-- 
' templation of parties, and is. not actually said ta* 
*^ have be^n made, the allegation of the advocator be-:' 
*^ ing quite silent as to the time within which the pines » 
*. were to be furnished. The Lord Ordinary, there- 

' fore, finds, that the agreement, as it stands, w;as qpe 
*. determinable on the will of. either of the parties, .b*: 

* the advocator might have refused to receive ,.Jtbe^ 

* number which the respondent was willing, to fui^: 
' nish ; and, on the other hand, the respondent ^pigbt 
^ refuse to furnish the number desired by the advo^^t 



ib.it covnr or s^iaBiioBt: ns 

* tor: Therefom adyocates the eati8e» assoilzieg ihe^^^J^ 

* itMsr] onA fiads him entitled to expenses^ ^^An^,^,^ 

* decerns.* M'Andrew. 

Ybe pQAuei^ redmned, and pteaded—'i^his is k 
mercantile contract; and tliey only ask thai they 
did be allowed to explain the writings by prov- 
hg tbe reference it was iindersiood to hare to the 
Antraet with McGregor; The written contract is 
Wadf indednite ^Hik re^ird to the number of pipes 
; ^ the defender agreed to Airnisli ; and it is pro- 
J«d td explaiii its extent only by the evidence of 
vitaesses. This is altogetW ditfereht from at- 
*"V*i'*& ^7 parole evidence/ io superadd an obli- 
p6an to an agreement wliicb has been reduced td 
wrt&ig^Gr to rear up a epndition contrary to the legal 
i^plieation of such agreement ; and it accords with the 
frbc^e of various decisions ; Sim 9. Inglidh, 22 Jaht 
W^iSftotr fMor. 13,Sil); Davidson r. Town of 
iBBrimigh, 22 Jan. i6U, Pount (Mor. l2,S27); 
Norvd V. Ramsay, 2lst June llfSS, (Mor. 12,290) ; 
BbDoA *. Gilmore, 27th **eb. 1777, (Mar. App. 
UgfKg^ No. 1). When ihe time of delivery is omii^ 
Vto be specified in a Ivritten contract, it has beeii 
fcmd eonq^etent to siipply the defect by proving the 
inctice of trflde. And in England a written cfohtract 
fib tbe present, indefinite as to quantity, admits of 
^cbig explained by ftie testimony of witnesses; 1 Phtt^ 

imwfW— Where t!i6i^ is ambiguity in tbe teh^s 
't wAtten contract, & proof by witnesseii has Some^ 
'*>^ contrary to the general rule of law^ been allow^ 
.^ to ekplain the meaning of pattied. dut where 
.^ is no ambiguity, the contract miist be taken as 
it »; fmt c/jk tltidence, 330, d46, and authorities 

P 



226 BECISIONB OP THE No. 9i 

^^^"^^ there referred to. ^e contract in the present case 
PoUock, fc.«. is cofaceived in the clearest and most explicit terms; 
M'Andrew. ^^^^^ accordingly, the proof is asked, not for the pur- 
Proof. pose of explaining th^ writing itself, but to connect it 
with another contract, to which, confessedly, it makes 
no reference. The quantity of pipes to be furnished 
on the stipulated terras is not mentioned; and the 
absence of any obligation 'to this effect is judt the reaf- 
'son why it must be held that the parties did not in^ 
tend inutually to, bind each other in that matter. 
Contracts such as the present are not unfreiq[neiit, 
the object being inerely to fix the price of the ar- 
ticle, if delivered, leaving it in the power' of either 
party to put an end to the agreement at pleasilre. 

ZiOrd Gleyilee concluded, from the HdVocator's 
statement, that what occurred between the parties 
previously to the written offer was of the nature of 
mere communings, and that the missive and accept- 
ance was the ultimate result of the whole bargain on 
the subject ; on which supposition the propbsed proof 
was clearly inadmissible, as the writing must1)e held to 
contain the whole agreiement. But if the libel had 
distinctly set forth that the parties had first confie un- 
der a positive agreement with regard to the number 
of pipes to be delivered, and that the written contract 
was merely intended to fix the price of the quantity 
thus previously agreed on, his Lordship would have 
been of a different opinion. ' 

Lord PitmUy agreed in the result with the Lord 
Ordinary, though not just upon the same grounds. 
When parties have entered into a written a^ce- 
ment, the rule of law is, that It is not competent to 
constitute, by parole evidence, obligations and Condi- 
tions which shall 'qualify or affect that agreement 
An exception has been introduced where the wriMet 



^St. COURT CKF I^QSJK^lir. r SyE7 

contract is defective ; but where there is no defect, a '^ ^^ ^^^^ 
puttjis not entitled to resort to the evidence of "wiUj^^^^^^^^^ 
neaxs to make a different contract. The present is M*An&ew. 
I eratract intelligl)}Ie^in Jt^ejf, a^d.jiqt defective ; and Prao/. 
\ ion not, therefore, fall within the exception. 

l«f^,Aff9foajf A^r^ly concurred wjfh Lord P|t- 
■pjr. This is as specific a contract as I ever read. 
' Alt the advocators YfrtQ^Uy sajr^fhat it is not at all 
fte contract which was i|i34e }>y them and the respon- 
fat—that it had^rei^^egLce tp.^Qt]^fr contract which 
&e parties had previously entered into. If so, why 
ns die contract alluded to not mentjf){^yj[n^(.l^^^Eiip->^ 
five letter or acceptance ? 

Wkw ,a yvnU^ ^^^^ i^ ,^. mp\ga^}^\!f pr ob- 

nif Ijt wwregwdcjyfe^tj t^. ^^^m^^g. 9^^ fhe j>^ip ^^ 

k allowed for explanation, under this qualification, 
Wverer,! that' the proof is iiot.toJiaeK:e,the effect of 
iVQiig up a new contract. I think the clear mean- 
Ijgof this contract is,, that, u£on the furnishing even 
ff A siD^e pipe, the respondent was entitled to im* 
«^ai«KBWPt,,^ C9?h ; ^^, mWl^Ai^ ^^ ^ 

ftnished indefinite, that/;^e.|{ftjp^y,4PJ^t^^,^^^^ from 
iki^reement, whenever he saw it inexpedient to con- 
tia^ making delivery. 

iie Court * adhere to the interlocutor of the 
* Lord Ordinary, in so far as it assoilzies the defender, 
*\aid finds him entitled to expenses,' &c. 

Urd Cfingletief Ordinary. For the Pursuem, Dean of 

Fac (Marcreiff) ManieM. Ja. HamiUony W. S. 

Agent. Tot ibe Defender, O. J. Bellj Shaw. Bowie 
and CampbeU, W. S. Agents. F. Clerk. 

S. 

p« 



i»ii 



1>£CISI0NS OF THE 



Nd.SJ 



FIRST mrijsio:^. 

No.XXXIIL 13 JDecenlier W9at 

MHyULLOCH 

agaiMt 

HIS CRfiBFTORS/ 



Cbssio Bonoruju. 

A DEBTOE incarcerated Upon a decree of tlSmsttt^ 
natural child at the instance of the naother; wIk^"^^ 
bis only creditor, and who had alimented him in pi 
son for several months, found entfAeAtalii^^iif^^^ 



Act, A^M^NiOk Ml J). M'Km 



■'.■■.■■■ ,-^,' irr ".)/. ^i 
' -^ . ■; :- 'jv'ii; (101. 

A judgment to the same effect waapfdhoitkM^ 
same dfly in the case of M'Ewen m Hijt OMSUlii i 
precisely similar circiunstancesJ 1 rui/^Hr gni 

Act. «/ig^h^ Alt P. MoUrUm. j^ji 
• ' - -• • .-: h,,., ^brtclioDd 

■ ' ', •• ' ■ ^ } tr-. .. \ ' ■' '; .: . I iiijiVnb 

'-.viliiiimJiA 



Hi. 94. COURT OF -SESSION: S8» 



SECOND DIVISION. 

NklOQEIV. li December 1%9S. 

BURN AKD Mavdataet 

agmnut 

FURVIS. &C. 

JuinDicnoN^ABSESTKEirr juhubiuctionjs puir^ 
ojjTDJB CAUSA.) — It w vwompetetU to bring an ae- 
■ tim m tm im^trior emtrt tiganut ajbreigner lipofi 
> «» »res6»eKtJiu^MictiomgJundandae causa. 

» 

PcxTu used an arrestment jnrUdietumU Jundand^ 
MMo in the hands of Thomas Scott, smith at Thirle* 
itane, against Bom, a creditor of Scott, "who resided 
•t Newcastle-upon-TTne, and thereafter raised an ac- 
tioii against Bum before th« sheriff of Ro2cburghshire 
ferpayment of a bill drawn by the pursuer, and ac- 

'. BwEQ a94 hia mandatary gave in drfences, decliq- 
in; the jurisdiction of the court; but the sheriff sus- 
taiaed the Jurisdiction, and decerned in tenns of the 

Bum advocated ; and pleaded that it was incompe- 
tent to dte -a foreigner who had no heritage within 
ScoUandt and against whom an action was brought 
onlf by means of an arrestment Jurisdictianisjundan^ 
^ cauM, before an inferior court; such juris* 
&tion being confined to the Courts of Session and 
Admiralty.- 

The Lord Ordinary pronounced the following integr- 
bcator and note : — ^'The Lord Ordinary having re- 



230 



DEiCISK)fN$ OF TtfH 



No. 8 



13 Bee. 1828. 



JBum, Slc v. 
Purvis, ^c 

JurUdiction, 
(Arrestmeni 
Jurisiiiciionis 
Fundandm 
Causa, J 



sumed consideration of this cause, Finds that it w 
not competent to cite the advocator, a foreigner^ fa 
fore the Infe];iox:.CQurU,Qn tb^ giround of an arr^ 
ment jufisdlciionis jiiiiitiindci cdusa ; dismisses ,tl 
action, and deperns^ but finds no expenses due hither 
incurred.' * Nbtt.- — This, like many Ouxer qtiestiol 
of jurisdiction, being of .importance, and as it d^ 
not appear that tliefe hatf ^Vef be^ri any decisic 
on the point, the Lord Q^rdlu^ry wished to have r 
ported on Cases ; bu{ a)s the ^riekion does not ipvoli 
a high patrimonial interest, and as the parties pri^i 
ed for a decisioti ih the .Outer Hoiise, it has bee 
given ; and it iha^ be ^atisfectftfy to the partie^ I 
know the grounds of that decision. 

* II must be recollected thait this is neither rf tej 
action, nor one proceeding on a border warrant, a 
though, in the CirCtitiiStanc^^ 6f the ][}arties, the latU 
form might hkte been idopt^; Pi-actice hai ai 
thorized a jurisdictidti iti llib Irferior judge wH 
issues such 4 warrant, oh ihis grOilnd, that the od 
ginal fonri of k bbirder \irkrfani v^as to arrest tb 
person of the fengiishmai ^tilltl the territory \ii^ 
judge ; ai^d he was either liberated vl^oA Cautitt 
judicio sisti, the boiid of ciiiition fixing ^ domicil 
for citation. Or, failing to find bdution, he was com 
mitted to pi-isott wherfe he it^^s personally cited- 
Potts, 20th July 1705 fJifor. 4828). This prpba 
bly has introduced the jiractice, that where etfect 
only are arrested on sUfch a warrant, jurisdiction i 
founded, and the defender is cited befoi'e the judg< 
granting the wial-rant, by letters of supplement froft 
the Court of SeSsibn ; Hferdie, 4th January 17JJ 
r Jaror. 4830.) 

Mn a real action, where no personal cpncliisi<^^ 
are sought, the i)i'opHetor *ot land Ihust be amenable 
to the jurisdiction of the inferior court fatione f^ 



No. Sk COURT OP SE98IOX. m 

' piMj at least in cases w1)[ere the sheriff has a privativa^^;^^ *^* 

* jurisdiction in the first instance, as actions foi;Buni,^c. »• 
*fita%hting marches, building a march dyke, &c>^" ^^^^^ - 

. His, however, cannot go far, as no alien not n&inr^ jurhdhtion. 
[ ilized can hold real property in this country. , S^S^'L 

• The present case, however, is a personal action ^«'»^«"^* 
/ igainst a stranger, whose personal effects havQ 
'been arrested in this country, to found jurisdic* 
' tioii in the courts of this country, to which he i^ 
' not otherwise subject ; and it must be viewed as 
' if it were a Dutchman or a Frenchman, whose efr 
' fects have been arrested by warrant of the sheriff of 

* Aberdeenshire or Invemess*shire, not an English. 

* iQaDs hy a border sheriff. The general rule un- 
' questionably is actor sequitur forum rei; but a^ 
! Isnovation of thj^s rule, founded on expediency, has 
' been adopted from the laws of some of the cour 
' iinental states \ Foet, B. ii, tit 4, § 22. KUkerran^ 
^ id 1755, says (Supplement to Dictionary^ v. 295.) 
/ it was first known in Scotland in the case of Cap- 

* Uun Hamilton r. the East India Company, but doe^s 
' oot give the date of that case. The earliest reporterfi 
^ ate we ^ve^ in which the point is mentioned, is Fore], 
! Jl^Nov. 17S8 (Mor. 4885). The recent iniroductiop 
/ of Oiis departure from the established principles qf 
*',llaw, uid its. foundation in expediency, not necessity, 
^^linpoirb tliat it ougl^t to be extended no further thap 
^^jbrkcUir^ founded on expediency, authorizes, and ip 
^ (<]^l^s^Ilc/ with our other .rules of lawl Hence \t 

' is rejected as the founda.tion.of an action regarding 
"* 5wni<)64«ii^ Dec. 1772(3for 4822); 

L^wis * tlie Court of Session is the commune Joruv^ to 
r^all'^emnk residmg abroad ;' Erski B. i. tit. 2, § 1}, 
' snudler work, and B. i. tit. 2, } 1 8, larger work — }t 
^ d<iW ii6t 'Sjikii ' either nepessary or expedient to get 
f tl&'riji^ ill$Of aUboiigh tlie stranger may l^e 



nt mClSlOV^ OWTMS No. 9 

'\2!!!.IIf' ' ^* ^^^® *^ *^ ^'^ Iwre, bf having tia peraoaal^^ 

Burn, Ac. % ' effeicts arrested within Scotland, (Even a Scotsman 

Pur yis, &c < domiciled abroad, dying there^ must h^ve bis effects 

jurudietitm. * in this oountry conflrmed, not within the commis^ 

jtS^^ * s^iot where they lie, but at Edinburgh, ^& the cow- 

Fundand^ i mmejbrum for all strangers.) , On iiie contrary,' if 

*, a stranger is to be made liable to the courts of this 

' country, who perhaps never was virithin its territory 

' in his life, and this merely because a debt due to 

^ htm has been arrested within it, it seems but rea- 

^ souable that he should be compelled to appear only 

^ before the Supreme Court, wher?, it may be pre* 

^ sumed, justice will be best administered ; and should 

^ not be forced to go before those subordinate and 

^ Ipcal courts, whi^'faave been established solely fov 

■ the sake of the subjects of thjs country, as infaabi- 

* tants of its local districts, and to which they are 
^ sometimes compdled to resort, to. relieve the 8u- 
^ preme Court of ainall causes, As'to these^ the act 

* of regulations 1679 would certainly not be apfdira- 
^ ble to strangers^ who would fail under the exceptioB 
^ of sect. 16 ; see M'Eacbern, 8d July 1824. If ^ 

* stranger be bound to appear in the sherifiHCourt, it 
^ might happen, by arresting debts in different parts 
^ of the country, that he might be sued in various sbe* 
^ riff*CQurts at the same time, which even a native 
^ could jiot be ; for letters of supplement never are 
^ granted to cpmpet a principal defender to appear in a 
*' sheriffrcourt where he has no domicile, except in the 
^ case of a r^al action ; Williamson, 28th Nov« 1635 
^ {Mor^ 4815)* As to personal actions, see Supplement 
f to Dictionary, 278, 820. This is another di£Scalt^^ 
! how letters of supplement from the Court of Session 

* can give the sheriff a jurisdiction over the-strang^r, 
f who is in the action of constitution a principal, de-. 
^ fencer, wljen he is not locally with^R h|a jiarjfSiiC' 



si sc COURT' 0F gBfeioSr; ifir 

* iftm, nor, as in the bbr«» ?warrftiitai, ia« a fixed do^^*^^- *^* 

* iBRBe ibr dtation, or ha^ a fondtraMiv^ domieile iii Bum, &c «. • 
^Vfrtoe of tie iirfcstmetit on^hat w^arrant. Wheii a^"' ^^ 
'liiitiitoiiiit^ ia raised on an arreaCtnent, the BitesteeKjurUdieiknL -. 
;1k thfc prifltfpal deffender, the debtor bring oBlyS^^^SSl^ 

' csdlrt for hSi idtiBi^st, atttfW^ tliei?eft»e b6 cited oa^IS!!!!!^ 
' lettars of 'supplement ; '4mt the d^croe is against: the 
' srestee. Tlie ease is different when the decerni*» 

* tmre Is directlf against the stranger. 

^ K 'appear^ that i^trailgers alu^ays hadtbe privflega 
! rf beiqg hcBlti b^re the Supreme Court. Prior, to 

* llie fnstitutibn of the present. Coui!t»^ their cau^s 

* t^ peculiar to the King and- his Council ; statute 
•1487, c.l©5; and when the present CoiirtofS^s- 
' sioD wns instituted, who were to have jurisdiction 
' id dl crtril causes, the'catise^ i6f strangers are in the 

* r^ltdations speddly appofnted to be called on Fri- 
' hy weeklf , ^ qyhilk Is assignit for the King's ma- 
^lerir aiid tlie fiiateris of istrangearis;' see acts of 
*8efcrunt by Sir Day CampbeD, p. ». The Admiral 
' CSimH, as being peculiarly conversant with strangers, 

* bs acqtihred a similar jurisdiction by long practice ; 
' aaH, if practice had ajbioextended this jurisdiction to 

* tltt ^exSf tnr borough^urts^ it might have been 

* SQpporfed ; but the Lord Ordinarjr knows oi no such 
' practice ; and, at the best,.it could not be of any long 
^ ttsidii^. Since th^ cause was heard, he has taken 

* SQme pains to infbiln}^^ to the' practice.' 

the rtepoiident r^dSfJMi^ Woi^ 

>BBwety iolfowed him to condescend upon the prtietiee in 
miialrcafies. A condescendence was accordingly given 
^% which It appeailed, that in someaheriflE^urta do- 
crw Imd heeh pronounced in such actions, ge)i9ral]^, 
l^owmr/inJabwiice, or WHliout debate on tlie juris- 
iMtm\ tM (Haf^ ill a* great pro{K)rtion of coimtiesy no 



XMSGiBIONa OF TH6 



No. Si 



13 Hee. ID 



Bum, &c «. 
rurvls, Ac 



simifenr eemhad •eearred ; and tii^ tibisre w^^ottui 

like a gemerul or uiiifonn practice c^^.tfiejubj^ , 
The Lord9 eenaaltod tb« J^idg^.pC t^ic^.ot^ei^vPiy 
^(^Hjdidiion, sion, and peimaneiit Lords Qrdinwy^ v^hoUj,^ up^ 
jilnS!^ the poinfr ; iuid^^ tfaweafter^ tbel^dJwfici^-Clerk ai 
ra^^n^ BoUnoed the wuuum<mfi opinion of th^ w|ii|le Qcnij 

that the interlocutor of the Lord Ordinary oaghjt to t 

adhered to. 



Lord Ordiaafj^: JIfedwyn. Act- J{q* BeU^ Andr^ Jf^t 

, ray, jun, AU. J)eanof Fac. (Jioncreiff) If. J\ Re 

bertson. A. Doufflas^ W. S. and Mackenxie Mjad Jrimi 

Agents. F. Clerk. 



FIRST JOUFISIO^^. 



No. XXXV. 



16 J)ecember |828. 



CpLQUHOUN 
COJWiUHOUNS. 






^nu«B4;Ki> ANp Wife-— •JPresceiption.-Tailzie,- 
Sekvice.— 1. ^ poBtnuptial cmtrtu^ ^'mam^ 
cannot^ iu general, be revoked hy one ojihej^^. 

'%. A deed of entail cannot become effectual agatTui t^ 
Jidfv wadw 41. mornage-^ontract i^ prescrt^m, 
vJuk thf ,efiit«iler Hvef, tjt^ deed cq^aintng jtoipein 

to hi$.elde*tino,*4» ojf4,.th ^f^*, ^^f9^ ^ 



\ . . . *^ •'^ Servicer 

mtf§2 » ^ ; , . 

Bra pobtamptiffl contract of nmrria^ betweeit Robett 
taiqia^tttf of 6afm»traftd«i, Md H^n Jolmsoii (m 
171)) dM fc^meir isiettled his estate of t^UMtraddaimpoQ 
the ' said Robert Colquhoun^ and tbe^ helra-lnale of his 
' \Mj of ttti9 marriage y wUom failingf his heirs and 

* iMgiieea whittsooieveF/ 6e. 

Tho^eafter (in 1771) Rcfbert CIotqiAoto «M€uted a 
strict entail of the dstetd fyf €lamstraddai»< By that 
deed he spoiled his lands td * James Gol^jpihouDy ngr 
' eldM #00, and the heirs whatsometer of his body; 

* whom faiHng, to my other hAtB of tailzie aftjet nam- 

* ed/ The deed eodtained a precept of sasiue^ and also 
h procoratory fof resigning the lands into the hands of 
^t sapc^ori in ordv to &e granting of ' new infeft- 
' meat of th^ teme, tb be made, given, and granted to 
'tliesaid Xames Ck>lquhoun,'my ddedt son, and the 
' hdrs whomsoever to bfe proeiteated of his body; whom 

* fialing, tb Walter CEolquhouB^ mei^chalit in Glasgow, 
' xdlj second itoii, and the hijirs whcxmsoe^^ to be pro- 
^ treated of liis body,* &c. 

The granter, however, tes^ifves, ^ not only my own 
^ BEnreftt oF the lands, and otimrs before dispon^ but 
' aho (nil lidttrer and liberty to me to seU, alienate, 
^ BiiA ifaipignorate, or dispone the said lallids and others, 
\ or any part thereof, and tb revoke, alter, innovate, 
^ er change these pnesents in w^le, or in part> ^ any 
' lioie'of m^ life, even upon death4ied^' ^. 

Thereafter, (ih 1781) Robett Colqnhoun encuted 



fM 



IffiCmONS OF TISB 



N#.tJ 



*^sS^^^^ a thist-dfspoStkm of hia cetfttai) wHh dif«rtjkOB0/t 

coiq««iouB fk the trustees ta make paymept o(B l|i« 4ebt8f and to ,n 

Goiquho^n.. cord the entaik He died in 17*?; W* tfee trusty 

jfntbond and who entered into fiossesfi^On, recorded the entail UHtb 

pjfl!;^^ register of tailflBles in 1788. 

J^ James Colquhoun, the eldest ; don of the eptaao 

and institute in tiie entail, predeceased his father^ loi 

died without issue. WaK^r Colquhoun^ the seomi 

son, who was n merchant in Lwd<Ai aiij} agaifi 

-whom a commission <^ bankrupt^ had issuied^ die 

in 1802, wiUioat having made np.title^ or in Vofm, 

interfered with- the estate. Upon this^ ev^nt, fais^ 

Robert (the diarger)who'wa» the&ia theWfBtih 

dies, came to Scotland^ mid fi^ iseme time acted mii» 

his grmidfather^ trustees in managing the est^.' Ii 

1805. he retumed^ to the West Indies^. afiMr :gr9littt| 

a deed of factory in' favour of cerl^ imttviduBlf 

; whereby (on the narratave that he had not yetma^ 

- up titles to the estate of Camstraddan) he gimt« 

* them full power to estaWoh . and make upiS^di title 
' in my person, by general oc specialifertieei ^mA^ 

' ' wise, as hdr to my .said^gi9aiyd&iJier»< a» shaUiriiJ 
' thought necessary to vest a&d^ CMaplejUMt^ fyii ^jn^ 

^ to the said land? in my person/ rXhl^seiipailil 
granted asub-commisskm in fovourdf Jifr Gfeo^gellu] 
lop, autboriding him to purchase hrieveai^iliQi!«fieKiiq 
^ the said Bobett Colquhcmn .bdr of .tailflEJedaadoifni 

* vision in geneml to the^said deceaiM BobeffcKiQfil 

* quhoun of CanJkstraddan.' . • • s^n^r^ ^: 

Thereafter, a geftusral «enrioe was, in W9fi^^^9tB^ 

in favour of iftie tharger m heir of talkiie and pm 

»«vision, not of his unde, James: Gcdquhoun, thd itfsti 

*tute in the entail, bnt of his grandfather,' the etitalW^ 

and an instrument of sasine was afterwaDd^fexp^ri 

his favour on the precept ia the entafly andriM|9jM 



corded in the general n^teroLentbil(i«' 



yi^4P^ 



^Vfm Ui ratark to ChMlatid kk Wlfi^ Bobert GoU ^^^^^ 
ybtti (disflniming tlie {WMMdia^ of kis cottoiis-cdiqiiiMtt^^ . 
nemin muftiii]^ up titled under the entaO) applied ^^^^HT 
to ft ^ttMs Colquhomi, Ibe raperior of the greater HMma Md 
flirt of the lands, for an eiitjy as heir under the an<^ ^^ 
dflit ii rrcsOt u B^oftte estate; and ^ftrecept ofcbire^^ 
mM, imihx^aiiig him to be hiftelC in the estate of 
flnrtrniias^ M keare^ and lawfidhdr of fafs grands 
ltlka^}ilb€olq^Md^ was aeeoidhigly granted ; he^at 
iteiflitt^titiie gcantfritg^^an flsiiigfmtSoa<if an^ 
ifehi hi'his pesraon tb reduce* tiie "^entall, aoid binding 
ttttelf ta grattt a sufficient legal tHle to ti!e lands. 
ftiOlfa'April IfliiS, a mhiute of sale <tf the estate was 
naU&hfUtweet Mr Colquhoun (with consent of his 
in) aad'iSir James, hy whieh > tiie latter agreed to 
pfflaHfiM, as the price of the eitate; and the sum 
if Li6M» wtt paid down at the time. On the S9th 
Afrii,Ur Oolqufaoun took ^ infeftment on the precept 
fifdbv €OMAtf^ imd* his ibfctftment was recorded. 
'""'h Aese* droomsfanees, the question came to be, 
lAMherMr Colquhoan ooidd' give a good title to Sir 
Ibiei^'or whether be was bound by the entail, and 
kj^'tiie piooeedi&ga and titles which had been made 
ij^fiiapexteon? ' * 

'^'tt^wder lib t^ this question, setrefal acttois 
rae^btoagfat* before the Conrt. Sir Jameis CoK 
^dlotoibnniglit a mspenaion af a threatened charge 
fe^^Afneii vC^'tifeepdoe^of theestete; and he also, 
(mmtne of the assignation ta that effect fipom the set^ 
i^lfeiofigbt an.adkmfbr reducing 4he titles which 
^ barn mada^ i:^ in* ibm pecsoB of ICr Colquhoun ; 
MiOMilalteriiaJBedatt action of declamtor of his own 
liibtiiteviakr^^aalevand^Ndaetionof ttedeedof 
ttliiHiaadKie^Mititlea wUch had been made up ia 
^^aranu- •ObvttatiaistimrbsiCDnvtned, as defenders, 
ii« siAstitnteAaiia imder^be entaiL ' 



29S' 



DECBMONS OF 'raS 



NiK^sfl 



le Dec 1820. 



CulqtiluMin fh 
ColquhottOf. 

JJu9kand4md 

Wife. 

TaiiMie. 



The liord Otdkiaiiyf okdered 4(fMee,iia mA^ lo^iv^r 
the cause to ithe Court. 



1. T^ecbacgfr is )iei^^a|e an^of luxe of tlje fyxof^ 
lyiof Q^tquhou^ ^f C/^msfcra^daii, ^d^heis^idfo ^ 
<rf)the..i»a»ri§geiC)!f \\&, gyaji4&t^ ^.gp^^mq^iifr 
In th««e 4?liwact€^, .j*e .bad ^a^^iglit 40,^1^^/1^^^ 

tjiie.^uarriage oj^traet .waapo^tiufp^al^ it .was. qf^|:9U^ 
his j^aqdyu^hf r l^vipg given ,up^^r/claim:pf,f^ 
and. Jus r^kttB^ a^d haying dis(;hA£g^ the claWr 0' 
1^ exf cHfapss/pr naarest^kiaijr^ftherhi^ 
i^c^mI]B{aI^9^; Hephunit?3rown,HQUseof Ifords,^ 
4une ISI4, ^<w>.,iS^/)or/!^, ii* 942. . In, Qoxmfffipf.^ 
ther€fiore,:pf the^iM ^editi thus vest^ in hi|a# tbe^p^fi 
fi^pr lia<^, ^s^eir lender the ^arr^ge qojp^t^^, ^ ^'^ 
to, set taside; any deedj restricft^ or , alteidi^ ^e Xi^ 
vested in hiu^l^y it j M^nro f. Moni^o, 13th^£^K.]fjBJ0^ 
Nqith^rnwaS) t^ie. rights cut off by pre^riptipn; %^^ 
tU>the'4e9th of the .entisiler in 1787^ ^i!e.;i^a^#(l 
fOG^ for AQ^a^¥>n ib^i^ hroiugbt , far jhe purj^^fr^ 
iettingjasiilei,^ d^ pf . en^l (^hi(^>Tf^ds ipcYOf^ 
by the granter) ; so that the heirs, pf .^e ^9^1117;^ 
Fere non valemtes qg^e ^ c^fn * ^S^tu, /^ JEfsi^^Bf <iil 
tit. 7,.f 87 ; Jackie 4?.5tew«rf, ^Ulj^l^^Stair^ 

ritforaM04); .E.,of,I^4frfai€^^t y^ 

28th F«b.. 1^66, iSltoV, /f^i>r. 11^206) ; J0,4)^4*ajja?|?T 

dalep. IJ. ofTwo^ple^gSi^h; J[an.i;t678i/i^^ 
lhl98) ; lE^rawn ,fj. Hcfi^iufn, §th .^if\fr ?eft%#Wt 
rJMbr. H,2P8U Ip,if».«>.>l^«^ l^JBebi<J§p^.lfW 
fjtfor.n^a). v^ 

, S{, Thcj^pyi^e e^qfi^e \^ ^tmp jpf .ithe^KW*?''iW 
lifir ,of :flo|^^» ^d t|ie- aup^tfi^^t : i^jpersuppp^jXlJ^^ 
i^ot autbsRg^ed by, Wp; i tjUe Q^ly.powr ^)^vgrppS?4 
having been * to mf^ke,up!6ttch t^^es in jajy^pe^iW^J^ 



jTas?. cotmT OP SESSI0W, nm 

' general or speaal Befvice, or otherwise, M heir to ^ *«^ ****• 

' my said grandfather, as shall be thought itectssarf^i^i^^^^^ 

" to vest a fill! atid complete Tight to the said lands in^*4w^^' 

' my person/ Btit, at any i^te, faaiin^ been expede mMamd md 

wiile he was ignorant of his ri^ht under the itiarriaffe- ^^^^i^^ . 

«Mbact, th^7' w^re HaWe to ^reduction. Iliat ig^o*^!^- 

mice v^ a sufficient answer to Bhy plea or pretext that 

lehomtilogtfted the cmtail ; Slrih BAH. tit. S, §48. 

S-Blitthe tli3e nnd^r the entail whicfa'' wte made u|) 

bfavohrbf thepctrsner w^ fendallf inept, because he 

wis kefr^d'heir 6f tailzie to his graicfdfkthery the makeir 

of the deed, instead of being served heir to his uncle, 

laoiies Col^uhothi, &e itistitdte in the entail. Sueh a 

fifle,1)^liig ex J^acie null, could not depifve^ tftte • pui<. 

$aer of the powers and rights 't)therwise eompetedt t6 

lAin ; kAd it ought to be reduced and set aside as fdto- 

geflier erroneous. Nothing is more settled as a prin^ 

€fpie of the taw of Scotland, 'than that a diq>enee does 

not take by service. He is not an heir, and, conse- 

^ntly^ th^e is nothing to take, as siieh,- out of the 

*^MditQs jttcen^ of the disponer. » Although <he dis- 

'positron may remain in the pdwferof thc^ granter until 

IBs Jeatfi, and the Hght of * die diSponee is therefore 

"SefeasiMe,^ the' feudal title can only be completed by 

infeftment being taken ttpbn the dlspdsHion. It makes 

BO difference that the institute predeceases the grantel^. 

b'|ioit(t if feudaT form, there is a right of feeeonVey- 

el*hy Ae tehns of the disposition ; and wheth^ tb*t 

SrAiiplit^a by infefterent in Ae person fiPthe dispd- 

iiefe;^a^ng upon the' deed, or temains^ personkl^ i^tlll ^it 

isiiec^ssary that ^^ h^ir*»f ight ^hohld b^ compieiod by 

•crVice to the individual' to Whom, frbto the- ilerms^bf 

tledfepontibn, the fee is convey W ; L6rdBtr&ihnaver 

f:T>iik*rdfDotiglad,«dPfeb. Vm.'^em:Bec^(Mm^. 

1«3W); Gdrilon 6f C^Wfen,4»Ah*NdV.^lTHB9,-«8». 



'^:> 



atufi 



DECISIONS OP THB 



No. J 



i9B^^(Mor. 15,884.); Gampbell r. CampbeU, 28tli Nc 
coSun P. 1770, (Mar. 14,949) ; Baillie r. Clark, 28d Feb. 180 
CuiquhouiM. Dyke v. Boyd, 8d June 1818 ; Ersk. B. iii. tit. 8, 
Husband amd 78; Hay 1^. Hay, 80th June 1758, (Mar. 14,869 
p^ipiimu Kttssell «• Ross, 8l8t Jan. 1792 fMor. 10,800) ; Do 
glas i;. Stewart, 22d Feb. 17&5, Fol. DkL (Mi 
15,616). 

As, tiierefore, no valid infeftment containing the 1 
.mitatioBs in the entail has been expede, and the pu 
«aer has made up regular titles to the estate ipfee sia 
pie, the ratail is not protected by the statute 1685. 






PJepided far Sir James Colquhoun in the suspeo 
sion, and for the substitute heirs of entail in the ac 
tion of declarator and reduction— ^ 

1. The marriage contract between the pnrsuei^ 
.grand-father and grand-mother, being apostnuptif 
one, was grat^itous so far as the children of the mat 
riage were concerned. It was therefore revocable tg 
the pursuer's grandfather ; and he accordingly did re 
voke and alter it, by executing the deed of entail, 
which is not only a valid and binding settlement, aj 
against his descendants, but, in virtue of the statute 
1685, is valid against third parties, or the public at 
large, as it has been recorded in the register of tail- 
.£ies. 

2. The marriage contract being conceived in termi 
of the present tense, an immediate claim for iniple- 

.ment vested in the parties interested ; and none sfu^ 
having been made until now, all right under it is lofit 
by prescription ; Stair, B. iii. tit 5, § 4 ; JSr^i. B, in. 
tit 8, j 88, 78 ; M'Conochie v. Greenlees, 12th SiA. 
1780 (Mar. 18,040;) Majendie v. Carruthers, l6di 
Dec. 1819, affirmed on appeal in 1820, 2 BKgh, 
.Rotttledge i;. Carruthers, 19th May 1812. 



-.."•\i 



»a. is. COVkf OF SESssio:^; J41 



S. A valid infeftnient has been taken uMer Ae en-^***^^'^^ 
taB, executed V t^e late Rpl)ert Colquhoua of Cam- coi(i«iioun v. ' 
rfaMea— i^4 Because ttie fafetoiy'gfanted bf flie'pur- Co> i"houn g. 
AKT virtually authorized 'bis coinmi^ioners' to meike ffnabojid ^nd 
ip titles tabim under th^ entail; and, 2i/^, As the ^^^^^^^ 
entafler reserved* his liferent' of the property-; with J^^^f^^^ 
fill] power to sell, alienate, and impignorate or dis- 
pcme; and as the deed never was delivered, be must 
beheld toiuive died in the fee of the prbperty ; for as 
Jtmes Colquboun predeceased bini, he neve^ became 
inject the institute, and never oblfaibed- aiiy ^harat5^ 
to* under the entaiL The entailer never was truly 
fivested of the fee of the property; it was only by 
iervice as beir to him that a title could be made lijp ; 
3H i. 57-^9, note, 4th edit; TuinbiiBs i>. Turn- 
Wfs iVustees, I2th Nov. 1822, Shaw akd Dunlop ; 
Bafflie r, park, 2Sd Teb. 1809 ; M;KenzIe r. M*Ken- 
He, 24th Nov. I8l8. ^Tbe same ' |irincif)Ie has becfn 
%lied'to trusts ; Donaldson and others r.lSir Liido^ 
nek Grant, lltb March 17^6 (Mtr: %€^9); Camp- 
.tefr..8peirs, 14tb Dec. 1790 (Mcr. 6658) ; Lockhaft 
>. Ungate, 19th Feb. 1819. 

At the advising^ it appeared to their Lordships that 
ttie marriage contract, though posthuptial, could not 
k revoked by the husband, while the entail could not, 
m.ft^ circumstances of the case,' Be protected by pre- 
Jmption. The only question, therefore, which It was 
^ecosary for the Court expressly to decide was, as 
to t&e titk which had been' made up udder the en- 
^ in the person of the pursuer, by his commis- 
MaerEf, Upon this point. Lord BaJ^ay observed, 
dut the mode which had been adopted oi making 
^P the title by service as heir of entail was al- 
together inept. The entailer^ although under an 
obligation created by the marriage contract, held 

Q 



f4» 



DECISIONS OP THE 



No.3J 



Tailzie. 
Serviet. 



*l^!tJ!r *^^ ^^^^^ ^^ ^^ simple; and in the entail wUcl 
Coiquhoun v. ^^ exec^ted, he disponed it, not in favour of hirasell 
coiquhouin. b^t to his eldest son, nomimtim, in fee- By it, there 
jjm/jandand fore, no i^ht of fee was established in him. Thi 
pr^s^ipiUm. ^^^y '^g***» though a personal one, was vested in hi 
son, the disponee ; and although the latter predecease 
his father, his Lordship held it to be q^uite clear tha 
it was necessary for the next heir, in making up \ 
title under the entail, to take out a service to the in 
stitute, both to shew that the institute had failed, am 
to take out of his h^Bredilaa Jacens such right of fa 
as had been vested in him by the disposition- ia tb( 
deed of entail. The service to the entailer was al 
together inept. 

In this opinion, the rest .of their Lordships concur- 
red. The Lord President obserVied that there was nc 
doubt that the entailer, in virtue of his prior rightSj 
remained fiar to the. extent of the powers he had re* 
served ; but> in point of form, he was, by the en^il, 
divested of the fe6, which had been conveyed to his 
eldest son, James Colquboan, out of whose persoiv ii 
a title were to be made up under the entail, it wa^ 
necessary for the next heir of entail to take it by a 
service. - • • , . « 

Lard Craigie observed — That there was no ?oora 
for the doctrine of homologation in the present case, 
in which the only question was with regard to the 
right of a purchaser upon the faith of the records. 



Tlie Courts therefore, (in the action of reduetiop) 
sustain the reasons of reduction, and reduce and dei 
elare, &c. in terms of the conclusions of; the lib^ 
but fipd no expenses due ;^ aud(iathe suspcaisio^) 
they repel there^sonsi of suspension ; find the Mt^^ 
orderly proceeded.; aqd find the suspender liftUe to 
the charger in the whole expenses of the pr^p^ ^ 
suspension/ 



Ih. S& COURT OF SS^BUCm:^ U9 

imUfnriam, Ocdiiunj. For JUdiot ColquhcMiti, F«^' 

ktmySmu^ord, Graham Speirs^ . George Dtrnhpi^ 
KT. S. Agent. For Sir James CoIqnHoun, S6l.-Gen. 

(Bcpe) Fareyih. D. FiihtTj a 9. C. Agent Fof 
AeSoiittitiite H«i« ef Eatttl^ Gremshk&y J>. Mae. 
Fwiane^jm. Gibson 4* ffedOTg W. & Agents. JE>. 
ClerL 



SBCONB DirmwN. 

Ko. XXXVf . 18 DeeembUr 1S98. 

KELTIB 

against 

WILSON. 

PlocEss.^— Dti.i6£KCE.^— L A sist gratited M a hill 
^nupeMitm gfop^ ^ ^SUgenee of poindings as 
w^aspersenal d^genee^ dwing the cufteney of 

Ih An mierloeufor on a hiU ef suspenakm ordering 
iihheamwered mihtn a Umiled Hmef meantime 
»ifyig execution^ and to he intimated, * hut on cau^ 
' Umonfy, and not otkermse/ i» underetood to stay 
iB^ene& during Ae eurrencif of the time allowed 
fir answering and ^finding cautian, alAougk no eau^ 
imhueeheenqffered. 

V 

Wtt^gO)^ charged Keltieby letters' of boning obtain^ 
cdtti4i bond and assignation to pay L«£12. IBs. 7d« 
S^ prasented a bill of attspenaion, on which tha 
Ufd Orduiary (Cringletie) pronounced the fbUowing 
n«a)Mitor, 8th Augnat 18918: ' To see and answer 
* Wittflii fottorCeaH ds^s ; me«b1i6ne slatur execution ; and 
' ^ ^ HftlnnUfed) but on caution only, and not other- 

Q9 



244 



DECISIONS OF THE 



No.ai 



DUigenoe, 



18 Dee. 1828. < ^l3^* After obtaining this interlocutor, the sui 
Keitie v. wiuP^'^^^ (before offering caution) proceeded to advortie 

^^^ a roup and to sell part of his effects. On the 20t 

Augui^t, being the twelfth day after the date of tb 
foregoing interlocutor, the charger proceeded with hi 
diligence by poinding, in common form, the whpl 
stocking and effects belonging to the charger, for pq 
roent of the sum contained in his assignation. Son 
days afterwards the bill of suspension was refused ' i 
* respect of no caution.' Anew bill was preaentie 
on the following day, praying to be passed withoi 
caution; and, on advising it with answers, theLoi 
Ordinary passed it ^ on caution/ 

The suspender applied by petition and complaii 
against the charger for contempt of Court, in proceec 
ing with his poinding on the SOth August, in face ( 
the sist contained in the interlocutor of the 8th. 






The question was argued in cases, in which the jri 
spondent {chwg&v) pleaded — Firsts That the sist ope 
ated merely as a stay of personal diligence, and did n< 
prevent a poinding, which, when not followed by 
sale, is merely a diligence in security to prevent 
debtor from disposing of his goods fraudulently to tl 
prejudice of his creditors ; Stat. 54 Geo. III. c. 18 
^ 4 ; Millar r. Wilson, 19 Feb. 1749 (Mor. 15,148] 
TuUis V. Whyte*s Creditors, 18 June 1817 ; mABei 
ii. 67 (4th ed.) 

Secondly^ That a sist granted conditionally in tern 
of the interlocutor of the Lord Ordinary, ' on cauti( 
* only, and not otherwi^,' had no effect to stay dij 
gence, until caution was found ; Tait v. Gordon,^ 
July 1828. 

The Court was unanimously of opinion that tl 
former plea was ill founded, and that a sist of execi 
tion granted on a bill of suspension, operated during i 



No. S6. COURT OP SESSION. Ui 

ctmency as an absolute stay of all diligence, whether *® ^^- ^^^ 
against the effects or person of the debtor. ^^i^^ ^^ yy^ 

Their Lordships also expressed an opinion that an ^^' 
iotorlocator in the terms of the Lord Ordinary's of />fo^«„. 
Ml Aagiist operated a sist during the currency of the ^•'•^'^ 
term, in which caution was allowed to be found ; but 
that, in the present case, on account both of the ambi- 
gaity of thjs interlocutor, and that the respondent had 
proceeded with his diligance in bona fide belief that 
he WHS entitled to do so, and also that the complain* 
crhad suffered no damage^ the respondent should not 
he subjected to penalties as for a contempt of Court. 
The Ijord Ju^tice^Clerk remarked that the report 
of die case of Tait v. Gordon, Sd July 1828, Fac. 
ChK. appeared to go too far in representing the Court 
to have held that it was competent to proceed with 
the diligence during the currency of the sist under a 
siffiilar interlocutor. Whereas in that, as in the pre- 
fioit case, the Court had only assoilzied the respon- 
dent from the penal conclusions of a petition and com- 
]daint on account of the ambiguity of the interlojcutor 
whieh sisted execution. 

'7^ Caurtf therefore, * In respect of tlie special cir- 
' caiDstances of this case, dismissed the petition and 
'complaint, but found no expenses due.'* 

^ ^^ffr^% CwnfighamCf Neaves. Alt. Skeney Thomawi. 
James Greiff^ W. S. and Parhf Agents. F. Clerk. 

U. 



. * In xeference to what is stated above with regard to the inaccurarj of the 
n^ of the case of Tait o. Gordon, the reporter of that case feels himself 

* aSUdmpMi (though with much reluctance) to subjoin his note of the observa- 
ttoBs which were made upon it bj the Court a few days after the date of their 
I'tvdihips* judgment, at the first advising of the case collected in the text. 

When the case of Keltie v. Wilson was moved in Court upon the 8th 

* jQl)rl628, thecooDsel for the respondent founded, at the Bar, on the 
. inii ympii^ pponf^sipf^ on the 4th of the same month in the case of Tait o. 

Gor^^^pcertaining the import and effect of the interlocutor in question, 
^#tt» th«- 9f^fmi/U counsel objected, that, supposing the decision were 



SECXSIONS DF THE 



m.tt 



FIRST DIFISION. 

No, XXXVII. 19 December I83i. 

SIVRiOHT 

WILSON AND BORTOIWICK, 



Servitude.—-^ ^ermtude agmin^t building' cMUUu^ 

ed in a minute ofude or MigiUi&n to grant a dim 
position, by a party wd infeft in the prcper^ 
Jbufid to be ineffbctmd, not hMing eniend the sub> 

sequent titles upem mhieh possession had fM&msA 
for forty years, {ddtough it wAs txmditicmed, inihe 

mnute qf s(de, Aat Urn serwtit^ skmldbe inserMl 

in the dispositum 1o be granted. 



i i k. 



imly applicid[>le, the tesponiMt fM iU)t Matecl fn tli« mxArd *ny phtt ia 
)aw which entitled him to avail himself of ^..^e had nt^^fHsmfed thMI^ 
order for stajring diligence was Inoperative while caution was not found. 

Lord AUoway read the Krords of the interlocutor in the case oif Talt ; an4 
pbwnred that, when that case was advised, he )MlMss^ IOb ffsn prwttioi, 
when officiating as Iford Qrdinai^y oo the Btlls^ to have l^ieiiy .never t9 
sist execution tUl caution was found, where the suspender^s plea appeared 
doubtful $ and that hfc Lordship b«d imdeiTstood that other Lords Ofdi. 
nary had followed « similar ooursob Iq the present cas^ the Words of th« 
interlocutor import that execution was not slated for one moment till caut 
tion should be found. The words are even stronger here than those iQ 
the case of Tait. Hut here the difficulty Is^ that there is no oortespondiog 
plea by the respondent -in the tvcffrd. 

LordGlenlee thought that the words of the interlocutor in the present 
case were more explicit than those in the case of Tait and Gordon. But, 
in the latter case, the prayer of the bill was for suspension * in comittoa 
* form,' which means on caption. Whereas, here, as the prayer was alterr 
native— with or without cauth)fek-i-!t was necenaty to say something in tht 
Interlocutor about caution. 

The Lord Juatiee^Clerk obBervied^thM thete tpti tip defence on the re^ 
cord similar to that in Tait*s cfla^ I am not Ibr dt^Ming the point noff 
urged from the bar for the first time, without fkrther con^deration. we 
may yet be obliged to retrace our steps in the case of T^ and Gatdtit- 

Th0 Courtf accordingly, < allowed the respondent tb amend hi» P^**? 
f law ;* and th« t^sult wts as stated in the text. . r 



S^ tt. COtJR^ OF SESSION. 4^ 

The late Mr John Dove, having purchased a sittajl ^^ ^^ ^^ 
property at Lanrieston from John Adaro» divid-sivnghtw. 
d it into two lots, upon each of which he built a^ ^^°>^ ^' 
Avriliag-^house. Oae of these he o<!seupied himself; senUude. 
Hie other» with the garden attached, he sold in 1771 
to Mr Borthwick of Crookston. At the time of this 
nle to Mr Borthwick, Dove had not got his title 
from the peiMn Inim whom he made the purchase ; 
nd, therefore, he, on ISth April 1771f executed ah 
oblil^ation narratiug tlie sale to Mr Borthwick, and 
«iaiowledging receipt of thd {nice, and binding him- 
lelf to grants valid disposition, and to deliver a suf- 
itieDt ptogfMs along with the disposition. The ob- 
figttios contained this clause : ' It is hereby agreed, 
' that no building wliateVer shall be raised or erected 

* an the foresaid garden belonging to me farther west 
' than the line of the^ Wester ride walls of my house ; 
^ and that while* and so long as, the said John Borth- 
^ vide and his foresaids shall think fit to hold thtir 
^ {mrebaae of me, and my heirs and successors, we 
' shall enter them therein gratis, without any com- 

* pasfti<« whatever ; and for that effect shall grant 

* tf Wfits requisite and necessary — ^the writs being 
! alTV^ya famished and expede upon their proper 
^eluffgM and expenses; and these obligations shall 
' flbo be entered in the said disposition.' 

The tranaacticm between Mr Dove and Mr Borth« 
wick remained upon this footing till the year 1777, 
vben (Mr Dove having died in the mean time) a dispo- 
tttioB was granted by his son and his tutors. That 
disposition had*'not beeti seen for many years, and 
coqU not be recovered Ht the time the present ac- 
tioB ^ms nraed. But^ in the same 3rear in which 
k obtained the disposition to the pro^rty. Berth-* 
wick executed a disposition in favour of himself in 
IM^«nl^ koA his ^Id^st foU rii fee i ahd imfnediate- 
I7 aEterwnda he obtaiMd it charter of resignation 



m 



DECISIONS OP'THE 



N9.TSfi 



*^^?«^/feom the Magi^rates. of Eai^ilw^ .This 4isim 

swiight V. sitiou executed by Mr Borthwick, apd the charter d 

Wil son, ^ resignation, contaiiied. aU tliQcle^ges in the obligai 

Servitude, tiou executed by Dove^ with fheexeeptipn of the sevi 

vitude agaii^et buUdii^gipf ifhich no notice/ waa taken 

Nor did that clause of servitude eater Qito aay of tiM 

subgeqiient titles of the propei-t7v: '^■ 

The prope|:ty inimediately a^l'^il^ ^^ Berths 

wick'89 which Mr Dove had occupied himself during 

his lifetime, was, sometime after his death, sold to Mi 

Sivright by Miss Dove, wbp had succeeded hei^ther. 

The dispositioA. contained a c]^i4^eof warrandice of 

th^ property, as * freQ fro^i all burdi^ne aod iaciii» 

* brances, and grQunds pf eyictjoQ at all hand< and 

* against all deadly, as law will/ None of Uie titles 
of this property made any Qienlion of the servitude: 
Mr Sivright having agreed to sell this property to a 
person of the naine qf Nicol, for the purpose of erects 
ing buildings t;hereon, he wa9 interpelled from com- 
pleting his agree^|e^t by l^lr Bprthwick, upon tke 
ground of the above servitvde against buildiug; c(m^ 
tained in the minute .of sale or obligation executed by 
Dove in the year 1771. Sivright then raised the prei. 
sent action against Wilson, 9s representing Miss Dove; 
from whom he had obtained his,4ispositionf founding on 
the clause of warrandice ; and ooncli|ding» that thede^ 
fender shou)d either obtain a valid discharge of th^ 
servitude^ or pay (he pursuer the whok loss, iajoryi 
and damage, which he has already sustained, or majr 
hereafter sustain by and through the reetfictton of fai*^ 
^ight of building on his said ;property. 

Ih defence, the defender pleaded that there m$BM 
foundation for the alleged servitude, no mentioa boiiigi 
made of it in the titles for more than 40 years, ^ ' 

The Cpuyt having ordered Mr Borthwidc-tp b* 
made a party, a supplementary suma«>natdibainefite^ 
\y'W .«^!?c»te<J a^03t Wm at iheijislaiBr^uf \^^ 



ire. ST. COURT ov session; &» 

MBi namtiiig the prerious sdnimtais; and condudlog i^^ec^i. 
toba^it found and declared, tbat the defender had sivtight^ 
wjjgfct to the territude, and that Sivright was^^^*°>^<^ 
otided to poflsess his property fi'ee of the alleged s^rvuwu. 
aorrteidey and to dispone or feu out the same without 
bni^nil^ect th^t^eto; and that the defender Should 
be dtecfaarged from troubling or molesting Sivright 
iBdit peaeeaUe possession of the same in all time 



/VnnlM for Mr Wilson^ 

L The clause of s^vitude in the minute of sale or 
oUpniom dated 18th April 1771, must be held to 
hm bMB afterwards l^lly departed from, as, neither 
11 &e disporition granted to the purchaser, nor in 
aafttftfae ailbeoque^ tftl6 deeds of the alleged ser- 
mat ivdoBUMnt tenement, for a period beyond the 
latg pfneriptioii^ is there any mention made of such 
a aarritude. It is impossible to account for the omis- 
i« ef the daude in the minute of sale in the whole 
sidise^Bettt tidedaedB inany other rational way, than 
tbt Oie parlies by some transaction, prior to the date 
«f4e dispooitioBt hadagreed to depart from the in- 
tended servitude* 

•: li The disfKMtion to a purchaser affords the best 
eitteaoe €f the terms finally adjusted and agreed on 
tiyihe parties. A previous minute of said or obliga* 
tioL^agraiit a di^Misition is a mc»*e prdiminary ad- 
jvtmentof the contract of sale, which the contracting 
pwtifis, by mutual cdnscfnt, may afterwards depart 
from either in whole or in part* It is incompetent to 
i«E»*toa.previous minute of sale or obligation to 
ffmt: a dispoeitidn^ aft controlling the terms of the 
dbpontieii, afterwards granted and accepted of by 
*e iMuxhaser. The disposition affords conclusive 

mA»w itf the lertes upon whidith^ been 

Miy adJHrtet Jtet«Kecn the parties. Every thing in 



SM 



BECISIONS.OETHE^ 



m.tfi 



46 Dec 1888. 



Sh'right V. 
SerntUudet 



thd ptevioiis miBute of sale or obligation, and wUc 
Was tberein exprelssly stipulated to be entered in tl 
disposition, . if entirely omitted when the dispositio 
Was granted, must be held to have been departed frop 

As the original disposition granted to Mr Bora 
Wick has been lost, there can be no bettt^ evidence < 
its import, thaa tiie charter proceeding upon tbi 
deed as itis warrant, which was tdcesi by 1ll^ Ta^ 
himself from his superior, the very same y^ tb 
principal deed was granted. That charter contaifl 
all the stipulations in the minute of sale except th 
servitude. It is, therefore, too late for Mr Borthwic 
to foutid on the clause of servlhide in the minute g 
sale, which his subsequeht titles shew had been abaii 
doned. . 

IIL The obligation by Mr Dove, in the mimtteD 
sale, even if it had not been afterwards departed fiwi 
was not of itself sufficient to donstltute. aservitod 
against buildhig. At the time of entering into tka 
obligation, Dove was neither infeft in the lands, n<» 
had he acquired a personal right thereto by dispoflf 
tion from his author. Having neither a persead 
right nor any feudal title to the lands vested kthh 
person, Mr Dove had no power to constit^ite a ser 
yitude ovel- the prop^y by means of the simple ob 
ligation in the minute of sale. To enable a person U 
constitute a sel*vitude over prop^ty, his right mdi 
be completed by infeftment; Ba^our'^ Prmtks^ p 
161 ; Stair, B. iv. tit. 17, f 6. 

IV. . The daude in the Ininute of sak or obUgtttioi 
Ugainst building being.omitted in the subsequtat titiA 
deeds of the alleged servient as weU as dtminkxA^ 
nement^ for a period of more than ^iOiyeara^ itis flol 
effectual against tia onerous jmrchasec UpoAtheAHb 
of the records, purcbasiers may buy> and creditor nw^ 
advance their money in p^eet Brtfety^ if, after > 



lb. «7. OOtJRT OF SESSION. TBA 

MffA, M batAen or iifranibrahm appeftr; ©one of 3a ^^^ 
Isteit aatiire ca& be reared u^ against Uieitl» This se- si vHght «. 
«% of the r^prds would be of no avail if «ich a^*^^ *^- 
IrtMrt WTvHm4e ^ the present could be effectual; sertumit^ 
^air, B. ii. tit. 7, $ 1 and 4. Mr Borthwiek 
lias expressed his renunciation of the servitude by 
tikii^ out and possessing for 40 years on a char- 
tiET whidi does not mention it. The obligation 
dedared tliat the stipulations were tx> be entered in 
tile disposition ; but as this servitude was not men- ' . 
timed in the charter, nor in the renewals of the 
iBfestitare, there is the clearest evidence that it 
kad been relinquished. The case of Gray r. Fergu- 
m^Slst JaB. 1792 (Mcr. 14,51S) founded on by Mr 
fiortfawick^ was essentially different frcmi the present; 
Artfaetethe servitude was taserMd in the feu-con- 
HMt, upon which infefttaent followed. There was no 
fMki for maintaining that the Mrvitude had been d^ 
'ptkA froodf which forms a material feature in the 
ff miit ease* Here the obligation to constitute a ser- 
^iliide never entered any t>f tbe steps of the feudal title 
isAet ef die seirvient ol* dominant tenement 

There is no ta^ whert it has been found that a 
dftose of servitode in a minute of sale^ not inserted in 
•>y #f the subsequent tities for more than 40 years, 
Msetfeetual agamst an onerous pm^chasor. Sudi a doe* 
iriae would completely upset the security hitherto 
'eid^ by the recwds. 

V. Even if the servitude in tli6 minute 6f sale hod 
Mbeen departed fitmi, it is nothing iuere than a 
lii&ple obtigafciDn, which is now extinguished by tte 
Mg«ti¥ia prescriptioB. 

Theieis a distinction between A simple dbligation tb 
mateia«elnritude, and BXk obligation whicfai ^m tiife 
Nitsef ^gl'anter^ title» ift of itself sufficient fti' tliat 
pupose. AgainM the tattff prescrijition will not bqpa 



^sss 



DECISIONS OF THE 



Np.8! 



WUsoB,tAc. 



ArfvttMlf; 



^ w!^^ to run until some positive act, iiiferring an abandoi 
Sivrightu ment of the servitude, has been committed ; where^ 
against the former, prescription will begin to ran froi 
its date ; Stair, B. ii. tit 12, $ 11 ; Erak. B. Hi. til 
7, $ 8 ; Stat 1496, c. 28 ; 1474,. c. 54. 

Pleaded for Mr Borthwick-r— i 

I. There is a material difference between a miaul 
of sale and an obligation to grant a dispositiei 
The deed granted by the late Mr Dove was of th 
latter description. A minute of sale is a bilaten 
deed; an obligation is unilateral. The fbrpier contaia 
merely the preliminaries, which may be modified b; 
after writings. It relates to the original bar|[ain \i^ 
, tween the parties, and is executed before the price i 
paid. But the deed in question relates to a peiioi 
antecedent to its date, when the bargain had been eo 
tered into and completed ; and it beHrs that the prio 
had been paid some months before. It ivas merely a^ 
a substitute for a disposition, which Mr Dove was w 
then in a condition to grant from not being feudaU] 
vested in. the property at the time. In short, it wai 
just such a conveyance to the property as is usuallj 
given in cases where the disponer himself has nol 
completed his title. It is. an obligation of servitadlf 
similar to many others which are to be found on re- 
cord. 

Where such a servitude, so created, is nieajit to b^ 
renounced, it must be by a re^dar written discharge 
. — ^the one deed is a counterpart of the other. Iti^ 
not necessary that a right of servitude should \»J^' 
dalized or enter the record to render it effectual ; v4\ 
therefore, it cannot be inferred that a right of al- 
lude has been renounced merely because it is not no- 
ticed in the title-deeds. It can jonlyJbe heiW>tOvih|C re- 
oiounced by a regular dischargfv <U* by delivery ^^ 



Jfo.fl. COURT OP SESSION. 253 

iMigatioii to the granter, or by its being cancelled. *^ D«c. 18M. 
Rone of these occur in the present case. sivriAt^r 

H. By the law of Scotland, a negative servitude may wusw^ac 
be constituted without infeftment, and without appear- servUwie. 
ii^ in the titles either of the servient or the dominant 
teBNnent, and by a writing much less solemn and pro* 
bitiTe ihan the deed of obligation in question, which 
nay be latent till the claim be made. The obligation by 
Ifr DKnre was, beyond all doubt, a valid and effectual 
mstitotion of a negative servitude against building, 
tAich was acquiesced in by the proprietors of the servi- 
M tetiement; from its original constitution in the year 
1771 down to the year 182S, when, for the first time, 
in attemi^t wad made to contravene it. But a nega- 
tive ^brvitude, being once constituted, cannot be lost 
nmutendo ; tibr is it necessary that it should appear 
h any renewal of the title-deeds of the parties^ Were 
Ab principle of our law to be subverted, it would un- 
hinge the r^ts of many pr6prietors ; Stair, B. ii. tit.' 
7,} 1 ; Ersk. B. il. tit. 9, f S, 85, 37 ; Belion Com^ 
fkhg Tlileg, 872 ; Oray «?. Ferguson, 81st Jan. 1792 
(Mor. 14,518). This decision is directly in point ; 
and all the arguments now maintained for Mr Wilson 
were there fully discussed and repelled ; and the prin- 
dplcB then laid down were again recognised in the' 
tee of MutrSe, S6di June 1810. 

HI. It is no objection to the constitution of the ser- 
VitUe that Mr Dote, the ^ther, who granted the deed 
af oUigation, was not infeft in the i»roperty, sinte his 
MB, from whom both perthss derived right, was infeft 
h'the property, and incurred, as the reprasentatite of 
'AehUier, all the'oMigations contained in the deed 
1771. 

IV CoKf^ assoilzied Mr Wilson fitoin the conclu- 
fcns of tilr aotioii^ i£ the instance of Mr Sivright, 



I 



9Brk 



DECM«ONS OF THE 



No. SI 



ir»Dec.l^& 



Si V right V, 



and in tbe mpplementary action of declarator at M 
Witeon's instance, they repelled the defences^ and d( 
cerned in terms of the conclusions of the summQUs 
but found no expenses due* 

Lord JSalgrayj^^The deed which mentions the 00 
vitude was neither more nor less than a minote of sal 
between the parties, upon which Mr Boiihwick pai 
the price* It contained the important condition tba 
this servitude should be entesred in the diapoeition t 
be grants. If mattem had stood upon this persoaa 
right between the parties, Mr Borthwick m^ht, eTO 
at this distance of time, have insisted against J)ovt\ 
reprasentatirqs, that the servitude should be insertec 
in the disposition. But the disposition was granted 
and no mention made of the servitude* lliis is plain 
otherwise it would have been inserted in the charter 
All that now appears is the charter^ which is 40 yetn 
old. Mr Borthwick could not now, after being iufiefi 
on that charter for 40 years, insist i^inst Dove's » 
presentatlves for a new charter, upon the gro«md tkal 
a blunder had been committed in omitting the ser?i* 
tude in the former charter. 

Lord Gillies concurred with Lord Balgray. Ai 
the obligation of servitude was not entered in thetittea^ 
the presumption is, that parties had agreed to depart 
from it. Although the disposition is not noirto be 
found, it is sufficient that this servitude is nel in the 
charter. The preBumption is, that it was notiPiffHil 
i;i the disposition ; but, even if it had» aud iras ooit^ 
ted in the charter, it would be the saotie iMog, tbaeiuur* 
ter being fortified by prescription. '^' 

Lord Crqigie hcisitated in i^r^ng to the opiaiani 
which had been delivered. In the case of an ordiMiQf 
minute of sale, where only the heads of the bargain' 
are mentioned, and wherie the agreiement is noi'i^^'' 
plete until a regidar eraktrtet & nadtjoat^ oirJidMk 



S«.S7- CQVRT QV SESSION. - a»5^ 

poatkm aoeqited of b; the ^u^Br/it may be Justly ^^ ^^-^^^ i 

picsaaed tbat ^ucli .contract or dispoekion contains ^.^^^^^^ ^ ^ 

all tbt was ulthnateiy intended by^ the parties But ^Uson, &c, / 

the qaegtion was, whether the same presufngtion cotuld smu^^ 

kid in a case like the present, where the agreement 

df die parties had been finaUy coiuducM; aad tha 

pnitiDg of a disposition delayed only because- the 

seiiet^s author had not been himself ixifefL Not only 

hid it lieen eq;^ressly covenanted that ther« shonid be 

BoJniydiiig on the seller's remaining property, beyond 

a fine there pointed out, but the price stipulated for 

tk 6ai]jeetB 80 privileged had been paid ; and as long 

as tiie seller retained any part of his property, no 

imfldingwas erected; so that the purchaser had all 

the possession which his right admitted of. As be- 

tveen the seller, therefore, and the purchaser, the 

bngBin, as made between the parties, seemed to be 

raqdete, although it had been stipulated that the 

&porition by the seller should contain these obli^- 

tioDs; and scMne presumption arose that this had not 

bees done, because the charter which followed did 

Bot contain a clause to that effect. But this was not 

neeessary to give validity to the right, which, if 

MiDwed with possession, did not require infeftment 

orpabUcation in the recorcb. As to the purchaser, 

%M, it did not appear that in such a case he could 

l)^ia a better situation than his author. It is true, 

tiMilte s^er^a fight was imperfect at the tiine when 

tht agreement was made ; but he, as well as. his author, 

^ iieen duly iiifeft in the^ landa long* before the dis* 

PodtioQ was granted ; sohI H was not .until a still later 

P^iiodthat a second sale was entered into ; so that, ac- 

c^cdiBgtathe'rui&of ./^mjD^r^^ the first pui^- 

^^^^ fight t^ ^e servil^e appem<ed to be liable to 

X4r4 JVemfeial coiieurred wMb Lorde Balgray and 



256 DECISIONS OF THE No.^. 

*^i!I!Lw ^^"*^ Hia Lordship exprewed great doalits who- 
ffiywtighrtb ^b^i^ 8^^ A personal oMi^ion, lijr a persoa not in- 
wa gon, jtc feftinthe prop»ty,' would be raffioieBt'to creates 
99r9Und^ servitude in a question with singidar succesaora. 

lAfrd Meadawbank^ OMEaavjr. For flmight^ S^lkerfbri 

iS'^nicAon and i>arfi9y, W. S. Aipiits* , J^or WUm, 
J>ean of Fac, (Moncrttff) J. L Henderson, Ala* 

GoUkj W. S. Agent. Pot Bortbwtck, '5drtt»idt 

Greig and Morion, W. 8. Ageaap. S. Glerb ' 

T. • 



SECOND DIVISION. 

No,XXXVIIL , 19 December Uil^. 

M'KENZIE 

against 

CLARI?:. 

ARBiTRA;rioN« — I. ApereQunamedae moitliterjif 
decUUngaUd^erences or disputes th^ma^ariieh' 
tween iwopartiee^Jumng ^^hrwardji (aUko^mtkr 
out euepieian qfparfialUifJ incurred a pereondluir 

. hlityin same ^tke points dispuUdbekpeeff^fiah 
is thereby disqualified Jram actings as arbiter. 

11. A personal direction to a^e^qf two arbiters is lut 
remooed by a poiwer to naase an ooersmaM. * 

The parties in this action carried on bnaineai to- 
gether as distiUeis ; and^ by their contract of copart- 
nery, it was agreed, * that, in case any dijQiHcenoe or 
' dilute shall arise betweni the partn^ra doruf ^ 



m. SI oouRT or session. m 



«f ^ coptatoerfy» OUsrihe^ aissolntion »^ec^^. 
VikMf, 4lw Move is hereby nlmiltted and refers Mq^enxieo. 
< i«it»«he deierminattoa <^ Tbomas €laric» Esq; at^^^ 
' Aiehlttaiirt and Jobft Hoad, ^Efiq* &ctor at iBTer- :tf7ii<f«<iofi. 

* pny, wlKwe deckkm fihall be final ; and who shall 
^tef« powerto luaieaa overimaii iii ctoenif di§erenee\ 

* Thepartnersliip waa difisolved'l)^ mutual consult be- 
1^ the period contemi^ted at its formaticm ^ and the 
frapnif' of ttie diatitteiy ~waa espoaed 4a sale^ and 
fndttBted bjr Donald MDonald, the eoiMH-law of Mr 
AoBttClark, one of the arbiters named in the deed 
rf agreement. McDonald granted bills for the price at 
t, fi, and 9 months^ wfaidi were indorsed by his father^ 
k-lsir, Mr Thomap Clark, in order to enable them 
l» be put into the drdle ; and were then delivered to 
Mr Mn darky, one of the partners of the company, 
tkdefaider of the {Mres^it action. 

Some disputes had in the meantime arisen between 
Ifefvtiiewin winding up the business of the distil- 
Ifff ; andihie arhiten named in fheconttw^t of copart- 
Bay leeeptedtlie submission ^otfta^ned in it, by which 
tD ndi diifaneiices were referred to lS»eir decision. 

M'Eeaaie applied by biU of suspension and interdict 
V^Bit'loAr Jobh and llioinas Clafit, to prohibit them 
ter iatosing awa^* the bills wbidl were in John 
tbfopoaseiaion, tt|x>n tiie ground that% by the agree- 
'te wMi llie purdiaser, one of thetik fthaft at siic 
liMi^ oagfat toh8v« been drawn in hi» (M^Kenzie's) 
auDesQleiy, and not in the company firm ; and he al- 
%i list Thomas XSark had iMeriBered ^^ntaneously 
iftfk iile^awl had o^red to indorse Hhe^Slis with- 
^ any necessity or request of tike partners to do so. 

*'Ki^ titterdiet was refused ; and the bill was passed 
^4l^tfy i9te quedfion, and was notfoUowed out by an 
^^EjK'f^M^Kenziep thereafter raised an ordinary ac- 
^I^QW^e^i^S^i^efel^^ partner; and 

R 



9AS 



DECISIONS OF THE 



No, Si 



Clark. 



Jrbitraium, 



iMj>M^^i8» resiled, from the submission, on the groiuid that Tha 
u^kXs^v. ™^ Clark was disqualified from acting as an arbiter^ 
The Lord Ordinary pronounced the following intef 
locutor : * Finds that the contract of copartnery ba 
« tween the parties contains a clause, submitting to twi 

< arbiters therein named, with power to name an orera 

* man, all differences or disputes which shall arise be 

< tween them during the existence of the oopartnerj 
/ or after the dissolution thereof: Finds it adm^ 

* that, since the dissolution of the copartnery, Hhe sai 

* arbiters have accepted of said submission : Finds n 

* ground of disqualification against one of these arbited 
' stated sufficient to vacate safid submissicm, mdre espe 
' daily since there is an express power to name ai 
V oversman in case of difference ; therefore i^ustainstiv 
' preliminary defence ; dismisses the process, ud de 
' cerns ; but finds no expenses due. 

The pursuer reclaimed ; and the Owr/ altered thi 
interlocutor ; and found that Thomas Clark was dis 
qualified from acting as arbiter in this submission. 

Their Lordships proceeded principally on thegrotuM 
that it appeared, both by the bill of suspension an< 
answers, that one of the chief articles in dispute in t&< 
action of count and reckoning was the property of lb 
bills, for which Thomas Clark had made himself KaM 
by his indorsation, and which M'Kenaie allt^ed hai 
been inproperly put into the power of John Clark. 

Their Lordships also expressed an unanimous opinioi 
that a personal objection to one of two arbiters naiine 
could, in no case, be cured by a power given to ffi^ 
of naming an oversman. 

Lord Ordinary, Jfirdog^n. Kct.SkefU. . Alt. AmdkB 

M'DougalL Wptherspoon ^ Mack and Rcbert -Key* W, £ 



> 



^ 



Apoto. 11. Clerk. 



."U--' 



U 99. COURT OP SESSION. «S» 



FIRST DIVISION. 

No. XXXIX. 80 Beember 1828. 

JiUES BRISTOW FRASER, Writer and Broker 
k Edmburgh, and THOMAS PATON, a con- 
cuniog Creditor^ Petitioners. 

BAKunFTw — Sbqxjestration. — Stat. 54 Geo. III. 
. CHAP. ISJ.'^Ufider the \5th eectian of this statute, 

asequeslratum teas awarded against a bankrupt^ as 
• ahnker^ in respect qfhis holding shares in a Com- 

psMjf eaUed the North British Loan and Cammis- 

n(M Company. 

Jx noring this ]>etition, whidi was for sequestration 
¥ Ur Fraser's estate in terms of the bankrupt statute* 
the Lord President stated that, in several late cases, the 
Court, as well as the Lords Oi^dinary officiating on the 
fillBdariog vacation, had awarded sequestration where 
Aeperscms applying, besides their profession as writers, 
ff beboguig to some other branch of the legal pro- 
Anm, had added that of broker, or partner in some 
Imding company, or as carrying on some other business, 
nchasthat ofcoalmaster, lime-burner, &c. without 
fKf ia^uiry as to the drcnmstances upon which such 
dbnctei^s had been assumed. 
T&icU a {NTOceeding, his Lordship observed, led to 
tbe awarding of sequestrations in cases which did not 
Vpear to fall under the spirit or intendment of the 
Kti-abd it was the more remarkable from the case of 
^>Bn^ts.ePlacnd8, who, although falling undeir the first 
I'Biiknipt act, had in the after statutes been excluded ; 



s6e 



JMSCKIONS OP THE 



No. 5: 



^^w^lw^ and who, if, hi some other character, they were liable t 

rnwer, Ac seqiiestratioD, had, in practice, been required to give i 

Pet itioner s. ^ condescendence shewing the nature and extent of th 

Bankrupt Separate busiueSs in Whfbh they had been so employee 

'I«^^54^^ before the sequestration was awarded. Unless a simila 

in. 0. 137. inquiry took place in such cases as the present, a sc 

questration might be awarded upon the ground that tb 

party held the most tririal &b4rft in dome joint slocl 

company, truly formii^ tio occtipatioh by which tb 

individual sought his living, tod irom Which no insol 

vency had followed. His Lordship, therefore^ proposed 

and the Court ^reeted^ that the petttioti^r should * givi 

* in a condescendence, sherwilrg the nature and exteu 

* of his business m a broker ; how longhe had earriec 

* it on; and to what extebt he had contracted debt 

* therein ; and whetheJ: he hdd kept biooks relative^t( 

* the said business of broker/ Thereafter, their I^ml: 
ships ^ appointed the petitioners to give In an amended 
' condescendence, atat^ more pdrticula^ly the p^ 

* tiener, James BristOW^Fraser'g, precise characterli^ j 
^broker ; whether he be aDL ilisitrance-brol^i* or stoc| 
' broker,' or what else ; aa Well as what are his deaf 
.* ings entitling him to that deiEfignation mentiitaeA^ 

* the act of Parliament ; aad, faiftker, stating what ai^ 

* the nature of the deaUb^ of the eompaBjr wbere^ 
.* he affirms that he ib itf |)artndr ; dnd #betber iii 

* said company be sdTeiit or vab,' &c. 

The import ^f thd tK)ttdesceiideA£e was» ^ner^f 
that he was a partner of the North> British Loan Bid 
Commission Company for advaaciag monies on feca« 
Fities/ and for dispOfiddg of all descriptions of prcfOTtJ 
by sale of commissioi^ or ol^erwjpe^ the stock of 
company to be L.2O0^OO» divided ifito ^sharea t)f t*Ji^ 
vacbt of which Mr Fraser had swde :a deposit on tei 
phares ; Uiat he had Ho reason to tfarnk that ih^ ^^ 
pany wa# ii»60>V9l]ft| mJw^ toncetJi^^ itfitf^^X^ 




Vf. ft QOHJKT or sssatoN: «S1 

^ymtik the pliblicL; b^l tbi» tfitee v«a ao cfaaaacte ^^y 
H fraent, I9 h^ opiu^on, tUiit the Mock on faatid>qeidd p^^r, ^ 
kjs leU to wch. advwtage as ta .eaafete the compaay to ^•^^«|wrB. 
#rJde a profit^ or eveo, to .pay back to the ooparthevs sankf^^ 
iai respective shates of the input atock ; aad, separ-f^^^^^^*^; 
nftiif^ tbafc Mr^Fraser. h^ catried on busineM as it^^A«.i»7» v 
Mceraqd eonMiusaioa^-agant, by produriog money for 
fijrt partica*. and impledgu^ hiaovn aeenrity, and by 
itimmg and discounting bilia^ and otiierwiae, upon 
vkidi he clarged coiiimiasiont and sought to gain a 
Wdd^rahla part of hla Hvelihood; and, i^stfy, that 
|K.waii..piteQiteQof an iarantic^ of certain improve 
•titoia. the.af^catimLof niacbinc0y^i>y steam, for 
{RypeUuig vessels in water; and that be bad esu 
poded considerable sums of money in endeavouring 
to king the aama to ibailEet. 

la support of the application, Mr Eraser referred 
to the following cases ; Scott» 9th Feb. 1790 ; Qlark, 
vriter and merchant in Glafi|;aw, Oct 1809 ; Craw- 
ford, writer and builder, Glasgow* S5th Nov. 1809 ; 
Mum, writer and merchant of wines and spirits, 1st 
Feb. 1810; HaU» mimater and banker^ 24th March 
1811 ; Stewart, writer^ coalmastar, and limebumer, 
SKkF^ 1815; Qfbw, writer to the signet^ and un« 
derwriter, 8th July 1815; Hogg, Slst Feb. 1815; 
A B« oaaister, jilinler^ and publiaiher^ flBth Nov« 18^ 
Aflvand IhmhpjW&isaa. Jjof^s^ writer te the 
agnet^and banker, 18S8; James Stuart,, writer to 
the signet and banker, 1828. 

..VjNaiadv^ii^. these odnieaeendeneea, and altet a 
^NSi^tation.witli^theotiw Judges, the Oottrt award,* 

«d the sequestration. 

The general opinion was understood to be, that the 
dttfi^ i& tbebiinkrupt statute, upon whieh tiie p^titiott 
MMi iuA kpea rUBmr loosely, woaded ; and that al^^ 



S6lt 



DECISIONS OP THE 



No. 8) 



sa De c im ifc^iigfc^ tjjg ^jgae of persons, situated as the petitioi» 
Frnser Ac. WBS, did not appear to fall within the spirit of the sti 
FetiUoners. juj^^ ygj^ ^ jf ^^g jjqj required that the character i 

Hnr^ntpt. which the party applied for a sequestration should t 

finr^ that by which he chiefly gained his living, ox that, i 

III, c^ 137- the case of one applying in character of a tradei 

the extent of the trade must be specified, or thi 

the insolvency arose from it, the Court could m 

refuse the sequestration in this case, more than | 

those which had been referred to. No stress was ui 

derstood to be laid upon any of the facts stated in th 

condescendence, except that of the petitioner be 

* ing a partner or share-holder of the North Britid 

Loan Company. 



ForsyA, 



James Mc^rtmj Agetit 



D. Cleii. 
C. 



SECOND DIVISION. 



No. XL. 



m December l%i%' 



JOHN AND MARGARET YOUNG, with the con- 
currence of Maeion Buchanan, their Mother— 
. PeHHoners. 

Tutor and CuRAT0E.-^2%e Court refused to ^^ 
paint ia curator ad litem to infants^ who had MiH^^ 

. tutors nor a curator bonis, ^or the purpose of en-^ 
ahUng them to raise an action. t 

The petitioners gave in an application shewing f^^l 
their father had died in 1817) without having niad^. 



I Sa 40. COURT OF SESSION, S68 



! 



any settlement of his affairs, or appointiijig ^utors or ^ ^^^«<^ ^^ 
eontors to his duldre^. That, in February 1818, thcyoJ^^^ 
CbHrt, upon an application to that effect, had appoint- ^^ti tionera , 
ed Heiuy David Bell to be their factor loco Uitoris in Tutor and Cu. 
tiw Bsoal terms ; That he, after having.found caution ^'^^' 
fod intromitted with their whole proger^y (which was 
entirely moveable) had lately died in a state of insol- 
raiqr, and without having accounted for, or. secured 
thdr property : That it was intended to raise an ac** 
tioaof accounting and payment against^ his cautiou--: 
en; bat, as one of the petitioners was still ui^der pu-» 
krtf, and tiie other in minority, it was necessary to 
apply for a curator ad litem to them in the .action 
which they intended to raise, and that their mother, 
who eoncnrred in the application^ was willing, to ac- 
cept of the office. The petition, therefore, prayed the 
Court to nominate and appoint the said Marion Bu- 
dianan, or any other fit pereon, as curator ad litem in 
the intended action. 

There was no opposition ; but the Court was moved 
hf the novelty ;4>f the application ;.ai^, before answer, 
diluted the petitioners to shew some pi;ecedent for 
sochastep. 

Hie petitioners founded on the cases of Ogilyie v. 
Brown, 17th Nov. 1696 (Broum's Sup.iv. p. 827) ; 
Seqtt V. PatoD, 17th Feb. 170S (Mvc* 6050) ; Mac- 
phmon, 18th Jan. 1773 (Mor. 6052) which were all 
CMS of curators ad Utea appointed to married women, 
far the purpose of bringing actions or doing diligence 
qm their marriage-contracts against their husbands ; 
hot they admitted that they had found no instance of 
a curator ad litem appointed to minors, to enable them 
to pursue actions which were not already in depen- 
denee, except in the act of sederunt 6th August 1554, 
<m an application on the part of the Queen Dowager for 
the appointment of curatores ad Utes to her daughter 



S64 



DECISIONS OF THE 



No. 4 



20 Dec. i8ia. Queen Mary, to enable her Majesty to punue radd 
Ymnl Ac. *^^d Rctloiis raised, and about to be raided, by 



PetitlonerB. 

Tutor and Cum 

raior. 



against faer. 



T%e Court refused tlie petition, in respect timt A^ 
was no action in dependence in which the nominatit 
of a curator ad litem was required. 

Their Lordships remarked, that the proper^appl 
Cation wotdd be for a factor hco tutarU, who mm) 
be obliged to find caution beibre entering into his o 
fice, and who might bring an action in which the A 
fender would immediately caQ ifor a ^ntrartor odWHi 
to be appointed to the pursuers^ or that the partk 
might wait fill the younger petitioner had attauie 
the age of puberty, when they mi^ht dioose cura(toi 
for themselves. It was also remarked, that, if an ac 
tion were now raised and called in Court fn the nam 
of the minors, the rery first 4step of procedure wciil 
be to appoint a curator ad litem in the dependii^ ac 
tion at the instance either of the defender or of th< 
pursuers themselves. But the Court declined to mH 
mate any opinion, in hoc statu, whether an adkn 
could be competently raised in the liame of a pt^ 
who had no tutors. 



>s 




Act. G. Napitr. 



G. and W. Napier^ W. S. Agenti. 
• *. Clerk, 

U. 



Sbtf.: COHBT.OFaBaBIQSr. m: 



SmCOND DIVISION, , 

" . . . / 

^^liA^ .. . ;* JO. -Oe(i«iiA^/ 1«8»- , 

OORMACK, Troated on the fiequfiBttaratedSetfite.'cl: 

Kuaaii^3u-«as:9dB8QrBA3: v^ 64i Geo* JIL 

. €.^ia(fi--^A^ creditor, who. is, bound to re&eve hU 
' Mior ^ a pmtticidar:debt .up^fir wfyidk, diligence 
iuiei^doMeiy OMd&er craditor ii barred pofto-T 
mH 9aMfti^v0jrimJS}UMding.Mp(v^A^ diligenQe 09 
- tddtf^jt^hmikrupkaf m order to sue out a eeqnt^^ 
Ute hankrupL 



Uinofi «id €kud«er wete engaged i^ XDaoy jomt 
Wdiag^ sipKulatioDS ^ and lulla far iauitiud acpomoda- 
tei hiBoa^ otfaexB, Laurie j^ad accepted a biU tcr 
Gttdaerlj^. T^jS85, dated 4th April 1827, aad payable 
foarmondis aftfr date, :wki£|i Qaidaeit di^ccntoted^t 
tbe Bank of Scotland. At the time when this bill was 
gnited^ Qanbielr^^iHea JeMer to. Laurie ^dknowledg- 
iog diat it was acjcq>teit .£MrLhJa jaeoomttodatlQn, and 
l>D&ig hnisAlf to relieve the adoeptor of U* 

llie'biH itfas didioaoiured whes Aw ; Itnd tb^ Urea* 
war of die Sank several months afterwardi took out 
letters of caption against Laurie, which wer/s r^mrmd 
^th the messenger's execution of search indorsed 
diereon; faiat iie pmeoaded no tortb^r wtth hj^ dili- 
gence. 

Cbtdner,! in tbe meantime, became bdsJonipt.; nnd 
Cormaok mm appointed : trustee on bi? «$%liegtrAt»d 

S 



sm 



DECI8K»iS OF T^: 



Nou4 






go Beciaw . estate. The account earrent between Gardner ftid La 

rie shewed, at this time, according to Gardner^s Mai 

ment, a balance of L.1984. 16s. 9d. in his &voar. 

Cormack then applied by petition for a seqnestratS 

^SrSSlr agauist Laurie, producing an affidavit by Gardner^ 

///* c 137. this balance, as the ground of the amount of his ddl 

and founding ob the execution of seardi by the ma 

8enger> on the caption obtained at the instance of A 

Bank, as evidence of the bankruptcy. 

Answers, replies, and duplies followed upon 1^ 
])etition, which kept the application for sequestnitio 
pending for many weeks ; but during all that timeji 
other creditor of Laurie came forward to concur in il 
The Lord Ordinary, officiating on the Bills, on tb 
18th August 1828, prcmounced the following interk 
cutor :«-* In respect that the diligence founded on t 
^ * prove the bankruptcy of the respondent proceed 

* upon a bill which the petitioner's constituent, Wi 

* liam Gardner, ought to have retired, in terms of hi 

* express obligiation to that effect ; finds that the ped 

* tioner, who insists in right of the sai^ WiOiim 

* Gardner, is barred personaK excepU&He btxnfojj^^ 

* ing on such diligence in the present application 
' therefore, refuses the prayer of the petition.' 

The petitioner reelaimed; and, at the same tim^ 
raised an actiosk against Laurie for the sum all^;ed U 
be due by him on the account current to Gardner 
Defences were given in against this action, denying 
that any sum was du^ and bringing out a balance the 
other way. 

I7te Court unanimously refused the note. Their 
Lordships remarked, that the general ground upon 
which the Lord Ordinary had proceeded was quit^ 
well founded ; and also that the circumstances of thii 



^. 



UtL O&ORT OF SESSION. S67 



bf BO means finromable to the party ap-^^ ^^' ^^* 
ij^ftr Ae sequestration, as no other creditor hadcormadTT 
^ mtfettomB ibrWafd to concur in the apfdieation ;^" ^^ 
the Bftnk ai^deared to hare Boffident ccdlateral Borijtrupi: 
for ibe deH due to it, tii^re seemed to be reai J;2J!''m (?^ 
MR-toMiiste thio^ the diligence on the Mil had beenW ^^ is?. 
>Molnt only at die instigation of the petitioner, iu 
mimto taf a foundation for this proceeding. 

Ud (Mioarjr^ Medwjfn. Act J^ejf^ Ivorjf, Alt Ikon 
^fac (Moncreiff) A. M^Nem Cuninghame mA. 

' NUSter, and Alex. Jcknston^ W. S. Agents. T. Clerk. 

U. ' 



SECOND DIVISION. 

)k XLII. 18 Jtmuary 183d. 

JOHN JOHNSTON 
dgaiiist 
ARCHIBALD COCHRAN and his Triistue/ 

LeOITIIC. — ^ApPROBATK and R£PROBATK.*-^H£RI-i 

TABLE AND MOVEABLE. — ^I. In his 9<m*s amtroct 
^marriages a father having hound himself and his 
iijr# to payy ftfter his decease, a certain snm to hii 
ma and his wife in conjunct fee and liferent^ and 
% tte iMue of the marring infee^ and havings 
Uf a suh^quent deed of settlement in favour of 
Us san^ direeted this sum to be paid out of the 
^tctsamdated rents of a certain portion of his lands^ 
^ound tkat a daughter of the testator, renouncing 
^provision in the settlement, and claiming legitim, 
urn entitled tofmnd on the settlement as establish^ 

T 



S68 DECISIONS OF THE m. 4£ 

19 H^^ itlg^Oatae eMcunnfWM relieved ^ike Mm » 
Johnston V. der the marriage etmtraef. 
Cochran, &c jj ff^ere a poTfy ckdmit^ kgitim te M^ 
Leouun. late u sum received during hiejkther's l^e^ he mat 

1^^."^' oho give creditM^imiereee. 
2S!i!!wJ/'^ HI. Ameafe^0ffe$Mk$iy arepoftAleJramtheemh 
try without reU^ against the. heir. 

The late Mr Cochran of Ashkirk, in his son's «oa- 
tract of fnarrlage, ^ binds and obliges hmuBtf^hillidn 

* and successors, to pay to his said son aiidto tbftftui 
' Elizabeth Somervilie, in conjunct fee and liferent (bat 

* allenarly in security to the said Elizabeth 8(HDer- 
' ville of the provisions herein after settled upon her) 

* and to the issue of this marriage, as hereafter neii- 
' tioned, in fee, the sum of L.6000 sterling;' the said 
sum to be payable tbe first term of Whitsunday or 
Martinmas after Mr Cochran's death ; but, in theereitr 
(which happened) of there being only a dau^itaof 
the marriage, this sum, by a subsequait clause^ itie- 
stricted to L.4Q0O. 

Mr Cochran was a party also to the marriage eon*' 
fract of his daughter Mrs Brown, by wbtcb he boairf 
himself and his heirs to pay to her husband the sum 
4)f L.600, at the first term after his (Mr Coebrali's) 
deietase; which obligation^ and a payment of hJ^ 
at the time of the marriage, were aeceptad by- i&ci i^- 
iies iii«atia£ACtion of Mrs Brown's elaima of legidttif 

Upon the occasion of the maifrrage .of >«iiotMerj(^ 
hi^^ughters with Jdun Johnston, tlie* {iqnmsi 'Vf 
Cochran gave the latter L.500 ; auA, subflpefuialitly^hp 
ronWyed a bouse of greater Tafai» Iv \Abei JohtaMoB 
in liiifcrent^ and to her driidrcn »ibe,' dx;duiaB(«Ar)r 
right otherwise corapi^ent to bm hneimtL • ' ^ i' 
- MrCochras afterwaids sneciited' an eitttil e£ tte 



%« couKT OF e^asio^. a^9 

• 

Wftof Adddrk io fiwow of Im aoa and » wjwl':^;;^* 
«f nbedtutes ; and he^ at tbe same timeA iiuni^ a^go- johBBton «. 
)Mil«itae9eiito£ bia remaimog ImitaU^ ai»d dp^^^''''^^ 
iMeof liiB moveable estate, likewise in favofur oCbiai^^m. 
ui; hat bardening tbe coftvefance with {K^nyeiii of ^S)!^^.'^ 
ttt^hyades^ and ^ddiUoaaL provlMolia to Hm otbtr j^^^^""^ 
mheis of hia family, wliiAh wer^ boRrwiu^ deolarod 
to be in lieu of every legttl dalm trcappeteat to them 
^gvost loa estate wd ^eet9. 

MrCoclum'a Boa, aomeyeaxs afterhis fatii^adffH^, 
kame bflnkrapt, and his estate was se^u^stfati^d. 
Iitotoo* ta iu tight of his wifiB» th^n claimed, in 
Mtteflegltinis one half of the d^oeased'a ^ecutjry^ 
iSMmi^ altcfg^etr to about L.850tt; and brought 
ikliKseat actiatai againftt Mr Cochrraif jnnipr, and 
katrarteej for enforcing that elaim» which the Caurt 
lately sustaiiiedt by tepelHng a defence of homok>^ 
Iftim of the late Mr Coehran*a settlam^t hj the- 
lomir. Several questions then arose relative to Ijke* 
tertainflftent of the amount of the free executiry* 
llese questions are articulately stated in the following 
lrt»0fo|^ni^i of the L(ml Ordinary, which aqeom- 
i sn ofder for Cases to the Court* 



'The Lord Ordinary hiok advised this came^ aud 
^•'— ^ all the settlements of the late Mr Cochran of 



' AaUdrk which bear on the question at issua betwe^i> 
'tt« (Arties, which is to aacertain theamount of the 
' free execiitry left by him> in order to determine if hat 
^iidmamonntof thelegitim due toMra JEohnatou* 
' The popita agitated hf the counselloi: ^ partjiea 

^h liVhaAer: a sum of I^.40Qa provided H M' 
^'Cod^Eaminiijia maaln oenfaract of mairiag^ to a ^d 
' thoeof, iaca«9:.iheKaebould k^ ^y osi«, o«ght4% ba 
* <OQ«aei«l aaia debt* mad tberefaf dcdiKibl^ 6mk *t^ 

T2 



270 



DECISIONS OF THE 



N0.4 



la Jsa. 1829* 



Johnston v. 
Cochran, &c> 



* whole mass of executry ; or whether it ought not to 1 
^ held to be a burden thereon, in respect that a separa 

MTw^ tt o ^ ^^^ independent fund was established for its dfi 
Legiiim. < charge ? 

Apftrobate and « -rwr. <■ <• ▼ .^^^ •« i ^ <■ 

Reprobate. * fl. Whether a sum of L.500 provided to 1 

^H^^!^ * daughter Jean in her contract of marriage with h 

* husband Mr Brown, is to be reckoned a debt'di 

* by her father at his death ? 

* 3. Whether arrears of feu-duties due by ft 
' Cochran at his death are a burden on the execute 

* or on the heir ?. 

* 4. Whether Mrs Johnston is bound (on thestf] 

* position of her taking her legitim) to give credit 'ft 

* L.600 she received from her father during his lif 

* with interest thereon from the date of the advance 

* and, 

* 5. Whether she is bound to give credit-for^ 

* value of a house in Musselburgh, disponed to her 1 
' liferent by her father, to commence after his deaf! 

* by a deed 6th July 1804 T 




• The Lord Ordinary will advert to these in thei 
order. . - 

* The question of L.4000 depends entirely on ti 
effect of Mr Cochran's settlement, dated Sd Augiis 
1809 ; for, independent of that deed, there cannlJ 
exist a doubt that it was a personal debt cheated b; 
him in his son's contract of marriage. From tha 
settlement there arises some dubiety. It was ii 
favour of his son, and conveyed to him certar 
heritable property, and all the personal estate. Hi 
left by it various provisions, which, -S^ith the ifti^ 
L.4000 alluded to in it, amounted to L.9400, iftj 
which follow these Words :— ^* And whereas wie e» 
tate and funds, real and personal, hereby settledby nn 
on my said son in fee-simple, may be nearly adequaw 



Jkk «L COURT OF SESSION. 271 

"to the special burdens with which the sane stand "^ ^^^ 
^ AngBd^ aa well as the foresaid restricted provision Johnston «. 

* (ws. the aald L.4000) ; therefore my said son, by ac- Cochwn^Ac 
"eqiCaig hereof, or my entailed estates, in terms efLegiHm. 

■ the aettlements thereof, and the heirs succeeding to ^^^^ '^ 

* him therein, stand pledged and engaged as kfore-^^^***^^ 
** ttid to satisfy and procure discharges and extine- 

""tioDs of every debt and obligation, provision and 
"bequest of every description, created or contracted 
" tgr, or iocitmhent on me,' The Lord Ordinary con- 

* ados it very clear, that the whole real and personal 
^ eitirte conveyed by that deed was specially burdened 
*&r .payment of these debts and provisions; and he 
' duidcB that the respective subjects, viz. heritable and 

* aiOTeable, were burdened <«tto ordine^ viz. the per- 
' amal estate first for personal debts, and next the 
^heriti^ But there follows another provision in 
' the same deed, which seems to him to exempt the 
' hmtage and moveables conveyed in fee^imple, and 
' to lay the burden of the said L.4000 on the tailzied 
' estate. It is necessary, for sake of perspicuity, to 
' iKDtion, that Mr Cochran, in his son's contract of 
' marriage, provided L.6000 to the children of the 

* laarriage^ other than the heir ; and in case of their 
^bong one child only, L.4000. With reference to 

* this provision, the settlement 1809 bears, immediate- 

* If following the above recited clause : — * And whe^e- 
"ail deem it expedient, for the purposes after men- 
''tioned, that after my decease, a sum not exceeding 
*LJOO per annum shall be set apart from the reQts 

* sad revenues of the estate of Ashkirk, an4 stocked 
''aol at interest, until a capital shall, by progressive 
"acouni^tion, b& ra^ed therefrom, to the amount of 
''L^OOQi, the- capital originally ^ured to him under 
" the afpfe^d efoqptract of marriage,, sul^ect to the re- 
^^tions therein mentio^c^' lilr Cochrap, tbqre* 



97S DE0ISI(»N^S OF TH£ 1h.¥L 

u Jan. i«». * fore, named trustees for catrying tMs aMiumdntioa 

jdh^stonX ^ i^to execution ; and adds, * But in trust, for Hie pur- 

Coc hran, & c -h p^j^g^g j^ the different cFcfnts aftcT Specified, ifix.^il^ 

f^gitim, ^ In the event of the said Robina Cochran (his son's 

i^S^ "^ •' only child) being excluded fropi the snccfesslon to the 

Jr^^«^ ^ said entailed estates of Ashkirk and Musselburgh, 

^^ by an heir-male of his body, for payment fo h^ of 

^ the aforesaid restricted provision of ti.4rOOO sterling, 

^ in terms of her mother^s contnut cf marriage, the 

-^ surplus of bvlA capital being at his (Mr Coduan's 

^ 6on*s) absolute disposal ; but in the event of her »l^ 

^ ceeding to the said entailed estates^ in defaidt d 

^' heirs-male of liis (son^) body, then, anfl in such case, 

'^ she shall have no claim to that xirovision, but Ihst the 

-^ same shall, together with the surplus of Oie said 

'^* L.0OOO, belong to, and be at the absolute disposal 

^ of her father, which she shall be bound to convejto 

*** him and his disponees ; and ibilingtnyaald sdn^sad 

*^ (he heirs of his body, the said sum to "be liferented 

^ by my surviving daughters or daughter art; the time; 

^ and, on their deiqise, to descend and bdong to sndi 

*' of their children as are not in possession of Ihe e n^ 

^ tailed estate^,"* &c. 

^ Prom this it appears clearly to the Ijorfl Ordit 
^ nary that this sum to be accumulated horn the n-. 
*■ served fund of Ji.500 yearly, out of the rents of fhe 
*■ entailed property, was not meant, nor was made a 
^ fund supplementary of the fee-sipiple estate, to pay 

* that sum of L.4D00, but was created on purpose to 
^ pay it; ; and, on the daughter succeeding to the en- 

• tailed estate, she waa bound to repay or reconvey R 
^ to the heirs and dispone^ of her fiith^ ; and, faliBig 
^ them, to Mr Cocftran^s own daughters !n lifereDt, 
' and iheir children in fpe, equally among tihen. K 
^ therefore, Mr Cochran^s fee-simple estate was fcuTi 
! dened \yith this debt (for a debt it was^ so as to ^f 



; itjto J<SiB Opchran prim hco iii the; meal|time,.ti^*•JJ^^2^ 
\JI^$^mA cqiild be aoeumulatod froip the Savings of joimston «. 
t^iateaf .the.eataUed estate^ «he was hound to^^^^^' *"^* ^ 
[,m6ffk to hfst father^ or the executors of her grand- ^^^m. 
14rtlier» her nght to the said aocuniulating fund, and ^^I^Si^^ 
.Iftqjr maat hare drawn back this sum paid away by^J^^*^ 

.fAtsan and the dear eondusion arising from this is, 

f ftatlUt JL4000 is not an nltimate burden on thb late 

f KrCoduan'e executry» and eannot be charged against 

' j( as a debt for which it te uittmately liable. 

' 9i^ With respect to the sum of L.500 provided 

. ' and sUll due fay the late Mr Cochran, in his.daugh* 
' tor /eaa*8 contraot of marriage, the Lord Ordinary 
f bulno doubt that it is a debt, and nnist be deducted 
^ £rDp the whole ezecutry* 

* jk( The aame is his «|nxiioa upon the arrears of 
/ J»dtttieB due by Mr C!odnran at his death. If tbe;^ 

^,/Jildbem paid, thejr would havb so far diminished 

^s^Vi^mXxy. If Uiey had been due to^ instead of 
^ }q him, HaHSf would hare belonged to the fexecutoif, 
' as has beai unifonnly decided ; and, for that reason, 

* the Iiord Ordinary thinkB that the arrears^ in ques- 

* tioii are a debt on the executor, althoi^h he.adniits 
M)iat there ia one decision, S9th July 1718, Wilson, 
I (Mor. H55) finding tiiat the arrears of feup^luties are 
^iSburdm on the heir, for which he has no relief. 

, VTbisis but a single decision ; and being, with all due 
. '.^obBsmhn, contrary to the principles uniformly de« 
^|3d«dt that arrears of feu-duties due to a deceased 
f htoig tp his executor, the Iiord Ordinary has pre- 
f ipiaed to disseut £rom it He thinks that, if arrears 
rM is» by the heir, because they arise from the feu- 
'.m*mtt, which ia the ratio of that decision, they 
' mnW.^ tbe aaxQC reason, bdoog to him ; and yet 
' %,emtrary haa been estaUiahed. 
4A and 6A, The two remaining points are, how far 



27* 



imcmom G^ rnsR} 



No. 



JohrtftMh V. ' 
Codtfaii) A^ 

Legitim. ' 

HeprobiOe, 
H$PikMe€md 



' fiEi&er dttring ilia life; and^ ^ftu jreipectt to 
' L.50(>shegot at her nUarriage^ tbeiti ig Ho do^ 
' aixmt k. Indeed, she did not dispute it at the li 

* but eke said that the iBtereetmuit ne^ be reckoi 
' on it, foD which she referred to the ca8e<Qf Skioi 

* aodi I>ec. 1775. But that case is no authority, t 
' ingthe facts are quite different There^ Skimii 
' father borrowed a sum of L.lOO from his son-iii4j 
/ whidi he gare to his son, the pursuer in that a 
^ But the bond given by the father^ to hie aon-in-] 
^ expressly bore that he was not to be liable for ii 
^ rest on it during his life. The defends pleaded t 

* the pursuer was bound to impute the I/.100, \f 

* intereet <m itlroin the time he reeeived it, to accoi 
< of his legitim ; and the Ciourt -found that he m 
^ impute the capital, but was not liable for intere 
^ and the principle there seems dear that^ as the 

* ther's personal estate was not diminislked by p 
i ment of interest during his lilie, the son oeuld nqt 
'required to inerease that estate by paying i&tei 
- .\q it. Iff on the other hand, the father had paid 
Vterest on the L.lOO during his life, all that intej 
r, would have been advances to his son, and wlv 
Vhave been imputable to the legitim m well a$ 
' juripcipal sum. The Jeict here aud the pribci]^ 
' , quite different. If the late Mr Coehtan had ntot ; 
' . yanced to the pursuer the L.606^, the eaa^ei^ with 
' the acc^ng interest, would ha\ne beea i» b0fm 

* his deat|i, The interest, thorefoi^, of tb^ capita 
' , m: ad vmce to her ps much as the capital iteelf^; m 
*tjK^f ^c( Lord Ordinary's opinion, ought to be soiie 

* oned in every case where a chSd r^udiatea-lii^ 

* hej;- father's settlements. If she Will have: laMf/i 
^ ought to give it. . , . 



>> 



' tf iTiCiMbrftii to bis daughter, foid' her ^ diiUmn johnptw « 
rmki, the liWd Ofdintef is quite awwre; thafaapgo-^^"^^ 
'WSB bf-a liltJMr taa child of anhmtaUs 8ubjttt£«gtAVii. 
I '.abotf in general be caUe4 feriti coUotidD, iiferafiite- j^^;^'*^ 
I 'itfoBoriegftihi; and tbeprkiciple isobidaite, ^^'^^^mI^'^ 
I MkritdAe ac^jeiBts tcatmot bewckoaad in thapepsonal 
I '-iriatiei so the giraat of any <iDe bf aiaUifer .tda jcb3id 
*^ aa inty diminisbea the exeeatxy. Bat where a.£a* 
Mber, haviag given an heritaUe aufagectgto a cOiild 

* kf a levocaUe deed, and to take effect at hiS'deatii, 
'Hiefaoiii tfiat as a part of the provision which he af- 
'^enraids makes for her, the Lord Ordinary cataot 
'M turtle ehild is entitled to retain the haritadlle 
'4ldjeet, and repudiate the other prdvision. •. The 
^^MsDBeMa condaslon is that, if he hud fancied' timt 
'^hkr sfi^eavtot was to be rejected, and the legal 

I ^drimaTCioH0d to, he wonld have recalled tiie grant 
^•af tbt heritable sobjeet Now, ihis af^peass distiriet- 
'}f tobe wtat the late Mr Cochran did. In 1804 he 
- ^&p(R]ad'to the pio-svter a hoose in Mnsselbnygb, for 
''*kritfenmt use, and to her children in fee ; the deed 
*-mg revocaUe, and reserved his own liferent In hia 
' ifiter setOttnent, 0d August 1S09> he spedally^rdfer- 
' ial«> that gifl, and dedai^ that h^ means to make 
"cartsiil additiMflS provisicKDs on my grandchildren 
"*% Ifrs^Kerr, and on my two survivii^ daughtiers, 

* Bi^aia ahd Jean,' ^^ l^p^iiin is the pnrraer. Iti 

* tteafter {Nift of the deed, be bwdens his eon ^ wilih 
""dttpajTBienttrf Of^ ioAowiag additional provisions, 
^vis. to *Mfs Euphan Cochran, otherwise Johnston, 
*^p dav^twi in liferent, luiff to the child or diifalmi 
•i«*e^beay, eqaaMy^ in Ibe, of the sum of L.150Q 
*«f?HikSpal nwmfej'/ 

* When, therefore, Mr Cochran narrated his revo. 

* GaUc gift of the house in llfei'ent to the pursuer, ♦ to 



wm 



Jipeisioi^o^^^^ 



joiiiiitai «. ' *Awaa prarisioii qf ii*lim>» . the hof^ Qt^iimff 
Cocton^^tf. 4 ^^ j^ Ijq^ g||^ i, emitlei to r^udi^ tjljt^ 9^^ 
iHvi/iiM. ' vision and abide by the other. Both^e, einhi# 

S^^ '^ * iter. It 19 tmie that it 18 bii/t A ,lifewit i^ M |^ 
^ Tahie can he put on it. . Wb^er, whi^ thfi,j^ 
^ found Ibit the pnrauer had nqt hWKiIogs^^ 
^ ther'i Mttlement^ they took into view h^r jif^i 
^ taken tibe U^nrent pf the honae» thi9 lior^ Qrdji 
' knows aiot, 

' (te the points brought into this yiew,he ha^gi 
^ % fiill detailed opinion^ and would put it i4to w 
' teriocotoc, but he does not think that Justice m 
^ he done to the Comt <^ the parties, by either of 
* latter going to the former with a reclaiming:^ 
' He, therefeve, orders Cases to the Cpurtp ^a$ tl 
^ Lordriiips may have an opportimity of ^Rpi^ 
r this matter in writii;^/ 



Fhaded for the defend^^-*-!* AoooiidiQg Uf 
rale of approbate and reprobate, the; pursu^r^ h^^ 
repudiated Mr Cochran's settlemmt, is bwred U 
founding on the provision of the deed, by which i 
idieged that hig executry is relieved of |^e ifkt 
I1.40OO, which he became bound to jfpj iq ^is fi( 
oe&tract of marriage^ The rule, indee4> appi|^^ 
peculiar foroe to the present case, whe^ ti^ei porsi 
nUhou^ no benefit could hav^ accrued to him k 
the provision in question, if he had ^^wesf ed ^} 
settlement, yet insists that his renunciaticm of the p 
vision in favoitf of his wife, wfaidbcis dedared to be 
satisfaction flf her legal jngl^ip, entity him t^M 
on the settlement as enlarging the very fund to vhi 
thsso rigihln attadbi. The pursuer's demand, ther^a 
is <juits at variance with the d^kved wiU m^ uiU 




mik^ltibe deeeased-pffie eicMfeive o^eet df «M pro- *^,5f;^ 

'iM» jwcuritjr fiMT Hie defit oF L.40OO, or to lMe|ieftt<^a«i|»^ 
lb eSMtitor bf relieviiig Mm of -tihe oMigatfon of pay- /^^^Mn. 
IKtf of tintt stini ; Anftof, on vSMr, «1 ; Anaemte «. ^^JJ^ •** 

if Aiffli, sa !Dec. 1708, r^or. ill). *°*"^ 

E* An^n of feu-^nties, accordh^ to <6i« i d r yt u w 
^ptfhority of Bntkiiie, are a pto|ier ddbt oa the exteb* 
«r; B. iL Ht. 2, f 7 ana 19, TIte eatMO^WttBoti v, 
M and Grant, fi9th Jalf 1718, (Mcr. SMSfM irbick 
fa ej^odte ^^ment was given. Is hdd by thit' au* 
ftdr, in the passives referred to, to be o6ntrarf to 
thner pmedee, and, in its piSadple, orenruled l^the 
HlKqncnt ease of Haitin v. Agnew, JEcmM f iVdr. 

HI. The pctrsfuff in daiming ligUbttf fs Ikomid to 
oBlte the r 'Interest as well as the pfinefpal mmq of 
L580, wUdi lie recdred from the deceased M 4i|i9 
Dcasion of liis marriage. The case of 8khmer» found- 
ed tm by the jmisuer, is of a special nature, and inap- 
fBeaUe t« Ae present qneslSen ; Slair, B. iH. tit 8, 
f 45; Ersk, B. il}. tit* 9, $ 2«; S Baiik. S61. 

jPEarrdM for iiie pursner-^I. The only ^qneMu^ 
If^ reference to the diaim of flednction of <!he d^bt 
tf L40eo Is, whether, Sn point of fact, the exeeiitry 
tofls have been Telieted of fhat [debt by Mr GocAh 
Tufs aetdemeift It is irrelevant to inquire with wlwt 
fataition the deceased ptade^e anrapgeraest t»y wiiicli 



, l ,M |l f i J I U » M iip^ 



ff ll|« oaae. Tbe jpppoiqieiit relsUve to. the daim of dedyction on acc9unt 
^tltt eonTCTance of Uie house to Mn Johiuton li alBo omitted, ^It^Mut 



478 



DECI8KXNS OP THE 



No 



^i^lif?" *^ vas-aflfected. The pursuer has right to leg 

Johnston t». QUti;of the free executry; and the executor is not 

c^ciiraa;&<u t^led to difiainfch the amount of the funds by sta 

r^iiim, . RgELiu^t them a debt which has otherwise been 

jjf?^^, yided for. v The doctrine of approbate and reprol 

M^^. "^ *^"® BO application to this question ; Ersk. B. iii. 

3, § 49. The pursuer makes no claim whatever 

dM the deed which he repudiates, but only refer 

it as evidence for disproving the executor's avenn^ 

thut title debt in question attadies to the execu 

If, Ji|cLe^9 the, renunciation of the legitim had b 

d^lared to be the condition of the executiy being 

lieved of the debt of L.4000, there might have b 

room for pleading the rule of law alluded to. J 

the entailed estate is charged with this debt udcoi 

tionally ; and it is not more to the purpose, witb 

fjpreace to the axrtual circumstances of this case, to c 

j^qture what might have been the will o^ the dece 

ed, hiad he contemplated the event of the pursuer av; 

ing himself of his wife's legal rights, than it would hi 

beeu to speculate on that point, on the supposition 

thp deceased harkig sold his heritable property, a 

thereby greatly augmented his executry. 

IL Arrears of feu-duties are debita fundi ; and, 
the icuse of aU re^l burdens, the primary debtor is t 
l|e|r who succeeds to the property burdened. Su 
ai^rears, it is true, belong to the executors of the s 
perxQr, b^eqa^ise it is the vassal's fault that they we 
ZKit paidjn the superior's lifetime, and so made ]»a 
of Ms ^a^ecutry^ But it by no means follows tli 
ErVassal, who has not paid his feu-duty, intends thtr 
by .to ^eate a debt against his personal estate. E 
mif^trhave^llo^^^ the superior to. take the propert 
in sati^fection of bis daim of feu-duly ; and hiB bei 
if he shall think proper to rede^iaJtfrQm the irritaK 
cy incurred \f, p^ectUig to piiyr the tvu-duty, m^ 



^ 



[;RT OF SESSIOJf^^ 



Vf^ 



M99€dbU. 



he arreara discharged. But there J*;£fn-'^^ae 
irindple upon which these arre^lrs, '.TohnstbnT^ 
jir to redeem the property, can be ^^^*^*<^ 
ipon the executrjr. Accofrdingly, in ugiHm: 
i f>. Bell and Grant, 29th July 1718, ;^^;;t^. ^ 
\ (Mw. 5465), which is the only de-'jj^^^ ^ 
\ point, it was found that arrears of 
ible by the vassal's heir without fe^' 
ator, 

it is not disputed that the pursilei" 
um of L.500 received by him at the' 
age, still, upon the authority of the 
^. Skinner, 20th Dec. 1775 (^Mor. 
Lind to account for the corresponding^ 
not a material ground of distinction 
and the present, that there the sum 
ion was lent to the father by a third 
greement that neither principal nor 
>e demanded till after the father's 



I of deduction of the debt. of L.4000, 
id — ^Tbat he did not think the doc^ 
:e and reprobate at all concerned in 
he jmrsuer claims nothing thrbtigh 
•ment. He only says that this deed 
ts to other parties, which are of such 
le burden of this debt is taken from • 
I thrown upon the real estate. But 
ng any thing in virtue of the deed.' 
sition, therefore, that there is not* 
the entailed property for the L.4000,' 
by the deceased shfficient to ^atitfy 
bought the note of thi^Loi^ OMi- 
i of the case correct . * 

ly and Alhvotly concurred in this 




96^ 



OOdtSlONS OF THE 



No 



iaj«L^ 2>^ Juitke^Oefi entertained dmfata <m flie <j 

Johnston «b tion. HU difiBk^oItf was thiA, that it Wfius^ to be 

^^"^^*^ sunied that the deceased made the provisiaii ia 

JCtf^/tm. piite only in eo&tempkitionL of the. whote deed ia» 

M^^Sa^ ^^iog effect. The settleineiit i^M to be conaideted a 

j^^^^ mtfm quid; and, in this view, he though* that 

querticm ifme-^ouM the purstter avail hfmsel 

me proviaion of the deed and reject alnoiher ? It 

pettteA to his liordship a mere subtlety t0r say 

thapnrwer did not ask any benefit from thed 

He asked by virtue of the deed» and of that aIon< 

in/erease the executry fundsw He would be dire 

benefited under the deed, if held entitled %q foiyii 

the provision which charges the entaSEed eatat^i 

thelu4000w 



On the question touching the arrears of feu-di 
the unanimous opinion of tlleir Lordshi{tt coinci 
with that of the Lord Ordinary, and tiie doetrine 
down by Mr Erskine in the passages quoted by 
defenderSi — that these arrears were a iMToper burden 
the exeeutry. 

tduHlyf Their Lordriaps also coucurredt that 
ease of Skixmer did not apply to the clarm of dec! 
tion of the interest of the I/.500, aud that this cIj 
was in itself well founded. 

Tie judgment of M^ Coiirt was in the follow 
feihtns : ' Find that the provision of the ^mxi of hA\ 
'contained ia the marriage-coutract of Archil 

* Cochran^ juuior» and therein provided to the is 
' of that marriage, wisto thereby made a real bun 

* on the entailed estate of Archibald Cochran, 8eiii 

* as nffecting the rents thereof and is not a bun 

* upon the executry <rf the said Archibald Cochr 
y senior, and ^aMUQt be charged against that executi 

* Find that the sum of L.600 provided to Jean Cw 



HT OF SBSSIOIf, 



»l 



utt of marriage, is a debt' which fells '* J«n- '*»• 
a d^bt affecting the whole executiyj^^J^ 
bald Cochran, B^iiar : Find that theCochiwv«B. 
ties must, ia like manner, be charged Lepium. 
ig that exiccutry: Find that Mm ^^;^*^ 
Kmnd to impute the proTOiioq of^r^^"^ 
y herdfuringher fatlier'ali£e» witl| 
*eof since paymeat, in satiafactim 
legitim. Appoint parties to prepan 
d to the provision of the house^^ &e« 

Unary. For the Fanner, S6l.'Gen^ 

T. Darlings Agent. For the De- 

>n, Paierion. DcmMton and ' Mam wm ^ 




:onjd DirisioN. 

1^ Janmxry ma^f 

iITTLE AND Husband 

ugawt 
3TMAN AND OxHs&s. 

multiplepoinfUng and ded^ator, U 
fmrcioi^r ^wi JkeritaUe ^ulffe^pjbr 
ffice^imd e^ncUm^ ^ti^. dehU and 
1^ tke ^VcA ik^ creditor in ii,f;eai 
^pr^ferr^d to t/^ wk^ o^ 

fi whif03 m tbevtker ba^, i^m^ 

4ii i% jmperijt ^illif dfchr^ 




• ■ • ! ' .1 ' 

'^ K^ -s M !■<■ ' 



i^i 



p;$jC!^IONS OF THE Ku 






^livw**^^'^^^^ sold certain heritaljle 

i^^ttii.^* 4^9t9,Wii^pvJ^^^ tnist-eytate, to David Will 

" ^^-^ ■ son, .hipiself a trustee^ declariug the price, L,65 
real burden 5n the conveyance* Williamson ha 
beei| i^eift j^i, terms! of the dispositioii, and lia 
granted a bondi over the property for a debt of 
wards pif JUgOb, exposed it to public sale in lota, 
the articles of roUp it was conditioned, that the 
chasefs should grant security, in the Jir^t placi 
My Adamson, tb^ bolder of the title-deeds, to iki 
tei^t of an account of business done by hiui us 
^gstkt of the seller ; and, in the secoml place, tu 
trustees of Nicol Shaw, as creditors in the real 
deni, for the balance of the price. 

Mrs Little became the purchaser of the princ 
lot, at the price of L.S80. After intimating to 
several parties concerned the conj^ignation of thi:^ i 
in a bank, she brought a [irocess of multiplepoiiid 
declarator, &c. concluding, that the sale of llu s 
jects purchased by her should be found valid, 
the seller ordained to deliver a complete title, an< 
disencumber the subjects of all burdens affecting tl 
' — ^that all parties pretending right to the suly 
should dispuie their preferences thereon^that the j 
chaser should be found entitled to retain the expense 
process out of the fund in medio ; and, upon accounl 
for which, she ought to be exonered of the price 

* Anrf, ffeirther, the said subjects, purchased by 

* piiAiier, ought and sbould be found and declared 

• be flhee and disencumbered of the debts and burd 

• arfJecting the same; and the different parties ^ 

• stiaB be fbUnd entitled to the whole, or any pari 

* ttef said price,' dec6med and ordained i\} exec 

• dii^Mirges and rehxuitjations, so far as their rigl 

* debts/ and diligences, shall have affected or eitiem 



>«t <fp ^Wsaim. 



ass 



tjeets^ 00 that the rec<»^ mBy}fa}^^^^i^' 
9r il^ of die saine : or othcp-wise/j^iJ^;^^^ 
• that fhfe sale was inTdid, thut the Wightiwi, 
fomid not liable in payment of the ' ._^ 



Wp 



elkr'is law-agent, who held the titles 
cated for his account of. business^ 
• Shawns trustees, and the creditors 
md, were called as defenders, and 

ig died during the dependence of the 
ication in implement was led by the 
le, against the seller's sqn, who de- 
t him. 

g been found to be valid, and the 
gent preferaUe, the pursuer craved 
be balance, of the price of the expeiir 
those incurred in obtaining the de« 
on, adjudication, &c. amounting to 
d decree in terms of the libeli do- 
ts disencumbered of the debts an|l 
them ; and ordaining the different 
id be found entitled to any part of 
te discharges and renunciations, so 
extended over the property in quea- 



nary {oronoimced the following in- 
aks and prefers the claimant, Robert 
r in Dumfries, pfimo leco, to the 
KT^yment pf the account of expen- 
um% with interest tb^eof, in terjtiip 
bor of the liOrd Ordjn^ry, of 4ait^ 
^^f 1*84; Finely the pu;eBuen erf 
4lp^ ,GErtitle4 tQ ^tf^i^ out of the 
le sum of L.120. 18s.. 6d. as claim^ 
•No: 43 of process : Finds the claim- 
U 




iBum 



ffEXimOaS OF THE 



No 



WigliMMfb 
JLc 



' w!rw' -i^t^J*'M^Wi^ln*n; ill' Virtue of the teal lien 
L.uue,&c!fc'w * Witton tonltailftd ifi t%« di.^position and infefti 
*' im^voiii^ of 'D«ldd WiHfetiiBoii, fonnerly mere 
fin Ditemfrkb, entitled to the balance of the ftaid 
*\baex!dnctit)nj^ ktnto of the said real lien or 
! ileq ^! Finds iemd de(;htred the siibjecits purehase^ 
' tUe fhlnmers to h^ tteed^ and disencumbered o( 

* said real lien or burden to the extent only of 
^ balance payable to the said John Weight man : Gi 
^ Warrant tO) authorizes, And ordains the holders o 
' fanA in media^ the agents or managers of the Bf 
^ Linen Gompairy Bank in Dumfries, to niake pay] 
*?of A* lAiOYe ^ums, and decerns accordingly; 

* allows the pursuers, if they see cause, to ^ye 

* representlation' agdfinst tfcis interlocutor.' 
Tbt pursuer availed himself of this permfesic 

so far as the interlocutor found Wightman entitle 
the balance of the fund m medio, while it, at the ( 
time, found the subjects purchased by the piirsm 
ber freed' of the real burden to the extent only of 
balance. 

' Pimded by the pursuer — Wightman could not 
made his lien effectual without such proteedim 
tile -pursuer was. obliged to fill low out for coinpk 
bis title, and for the expence of whit h he lias 
found to have retention out of the price. This, t! 
fore, forms a proper deduction from the vahie of 
lien «s aff^iiig the gubjeets of the ptirsuer'!? ptircli 
AbdtbesafAe dbServMien applies to tlie law-ag 
preferable td^fm in virtue of hi^ hypothec ovei 
titleMl^edk if, theli, by m> proceedings hi vfrtu 
the Iwiii, a larger sum oouM have been realized U 
tli§i/ltm,itMi(m^thei$i ew receiving payment of 
k^Uoee^ tiefob<»ifid todisdbarge the property of 



lilieieitkiirdeii. 



-^eH (iis^b^'i 



But, tfl^e credited bfti Hsrht to demand tha 



rtiUj^mfaoistn lid ia» /Extent <of tbat ^'^'"^ »««^^ 

Killing' ihe lantef to , jh^ imie, aiid ^ 
priqft^ ftell^itlB(di^disat[|jbspttr; 
L the subjects at . tiieir AU price; 
M» tCMkitlti to hiktf»e£mn ti|e .bbr^ 



il lNir4« cooot lie: ^xtingniribed 
tt, unlesa^cjHtierby^Vtthintafjryitfs- 
if diecfaaigf uiidler a iwdkiiigiatad 
indue lien here deea ndt cktoi.oil 
I been diiectljF w iiiditect)|r ten* 
to die purauer. He tdaiiM iqioii 
)aA beleo^ai^ to his debtor, ithe 
e, faecaft only b^ eompdkd toidis* 
ko.theexteat of the summoeiY^ed 
ainifc ' . • 

indent's acquieBeenee in the deeretf 
alid and ^ectual, nor his tiddn^ 
ticess, by claiming upon, or even 
a^ price, could bar hdm fimn^jop- 
's demaaid. But, in fact, the jre^ 
itaifis a reservBtion c^ hjft right to 
sion of the sunimoiis Icor. declwtag 
ctingnished,^ whUe a^jr poftioniof 
UMatisied* i * 

at^ iif the respondent . iMd vhmm\t 
pertfi hf^cM^ Bdt.haTO4QaAeihi« 
.a^gfieaterektent, out:<>f4bi^.ftleei 
Idwtot bitn.byi tbi iotbcUic^tiAp 
K4b«tfaslijand?enKmflipnl.xi .Tte eit^ 
jfWMrfA t«e.(kt7|HlMtierMd*ftkf 
r4f«iibii»bMa»ii9ctIiie fxtqoecdiiW 
. Besides, tike stateiiMriti^aimi^ 
sorr^, is |)}fii^ irreltovMt. 
UJ 



«86 



DBCrSlONd O^ tttE 



lR[c 



w^Jtn*!^ . the rejefctfon df the piirisuetW plea Si^iffhbt' « 

i.Htie,&c^«. Mto to abandoh the action; and tmdo tb^ t^^ 

Wightman, • cetSdln^. 'But therespondent has dffert**di ««S 

— . the pursuer his security orer tHe remainizfg^ 16ti^ 

^•^ property sold to other parties. **- ' 

']tbe Lord Otdinsary s^dhered to fai& inteit<xmt5t^ 
explained the grounds of his judgment in Iblbh 
ing note : ^ The Lord Ordinary sees the hardsU 
^ the r«p]^esenter, bat does not think sh^ ctttf 1 

* Heved in the way oraved. When land k hurt 
^ with debt, it does not seem neompeUmt ym 
^ dearing this debt, for a purchaser from the d«b1 
V raise a nmltipiepoinding, and put the prices 
^ dh among the creditors. If a, purchaser dcM 

* he must^ it is Hiougbt, take his chadM ^ 
^ price paying all the debt in full, 6r^ of the^stt 
^ of debt remaining upon the land. There^i 
'tor cannot be called upon in such a wa 

* discharge the land of his whole tlebt on 

* ment of a part of it only. In this case, it fa 

* appears to the Lord Ordinary, that it is the pro 

* ings of the represester which have given to thei 

* of the last seller a claim eflFectively preferable tc 

* of the real creditor, under the rule established b 

* decisions of the Court in favour of agents (of v 

* rule the Lord Ordinary does certainly regret th 

* istence); which claim the real creditors mights 
' wise have been able legally, as well as justly, ( 

* feat. But it is perhaps not n^cefisary to go 
' that.' 

.LU-.i'^^ •- '■ ' . - -; ' • • ^ ^ '' v.L'v^.Mi^) 
The pursuer having reclaimed to the Court, 
QieAlee:^^ saM^Thdt th^re vifk4m f^iMiff^i 
ehaif iftg^Ote^lite^w^ltoat fttll^pMi^^ 
hottd, thck pvmlMP iff nbt oblj^ t^^UoW th<^^ n 



^JRS'.a^^f^QSIOK. 



987 



tbeifu^dio medh m^y; discuss tbeirl%>^^n^Q, 

q*C 

tg^t ^em^fiyeSf and jparUeigf. bci heard . 

lent's offbr tQ asaign jjiip ^^ujrity aver ^•^- 




fS. .art # ■■■ ■' f * 



geB having €onearr^< in thid o^ion, 
onoed the following infeiiocutar :-~ 
lien of die defender htts not been af* 
lie of the eubjeets ov«r which it' was 
id/iti so far, adhere to the Interlocu- 
tgainst ; remit to the Lord Ordinary 
as to the practicafbilitj of any ar- 
<2ie relief of the pursuer, and also as 
tnd extent of the preferable clalkn of 
rtue of his alleged hypothec ; and re- 
ons of expenses,' &c. 

rdinMj. For the Pursuers, Jameson^ 

R. Wehh^ Agent. For the Defender, 

W.Sfetcarty Agent. T. Clerk. 

S. 



sm 



IBST DIVISION. 

14 January 1^9Q. 

BNRY JOHMSTON 

qgainst 
SCOTT AND THOMAS SMALIi, 




m 



Dmifrnfif^^fmrn 



% 



Juhnitoa ft 

Scott, ^ci;. 



> fi^m^M tk^w^ty k^^m p^Hfim i^^iimfm 

jitf^iementB made in a process by dijrppti^j^^ 

''■-■■- ■■ • . ■ : i : J- .;[ Jlj: 

Ma Johnston, as one of th^ joamgp^i ^rM^ 
bebopf pf the. IMih Bankii^g Cqmpai]^ Wi^^^ 
p^^itioa and compliant against Mr ^cott^ wk^ k9^, 
merly beep.f^nt for th« hank at lianghoUn^afi^ 
SmsilVW* S^ hi» ag^t, narrating vai^^M:^ ^tff^ i 
ceedingi lietween Mr S<!ott and the n^nf g;^|^ 4)f 
£|ank> in i^^gard to a large balance due ^y^ bjn^ 4^ 
Bank; c^i^d tltat, after three hills of su^p^^sffy^fii 
aenM by Mr Scott had been refused^ 1^ Jbia^ j^ 
ed a fourth, in which he stated * that thej^anl^ J| 
Vcomvutted, several acts of bankru^c^^ai^^^ 
^ jCQmmission of bankruptcy had in cck^a^igue^ee] 

• )mj\ Issued by the Lord Chancellor at th^ ^ 

• soipe; of the Bank's creditors against the cbai 
' Jphostop, as one of the managers or pybliqc^ 

• of the company or copartnery carrying oi^ t^^, ,^ 

• and business of bankers in the city pf Carli?}? 
' tb? qpunty pf Cumbertoid, and at|ieithand^ 

• Ji^G^ ifl Gotland, under the style a^d firmfpjfj 

• Lc^ , Backing C^P^ * Thafjtbejfpijfi 
' fiif^i ^ ba^i::nptcy, which has thus been i^ued^ 
' the^v:bafi.Bi«)erae^ tjhe ich^iX5ir% ai^d ^P^^ 

• the i^t >!^Mph vpas ir^sted m theip to the; c^^i 
« jqfitfcer^aa^K v^wd Ui^ chargers J^iw^ 

' b^ve i^e power <)fM»uingthe^^ 

Th* p^tijtiop/wtlj^ ,5*at^Jha^i ^^i^ ^,^ 
suspcoasion i^^iwhigh ih%]^f^Y%stf^^^|^^^ !W^m^ 



lytttttf-^fisBiioJ*. 



m 



ireiieBied ' a petttiiwi fbi^ tRt^ *e^n^ joiS^ 
; wl^lch fiadl^mi o]f>pcte&l^ ilfcSedtt, s^ott^ 

:K)rd PiwiaeHtVin which he' sfeted t^^^if^'^ 
. Johf tstcm^ "^now designing himself 
iblic and prosecuting officers Of ^^e 
iving deeply involved the affairs of 
m this country and in Engli^d; nnd 
tUic o|lc€r» and for and on hehalf of 
(^eral acts of bankruptcy In Eifigldndr 
bankruptcy, at 4he «ttH^ of soine of 
tors, has just been id^ea against^ hitti 
^r of the Bank. The whole prepe^^ 
wherever situated, has thUI^ been jtt^ 
[and assigned to the creditors of the 
rhom the creditors of the Bank shaft 
up its affairs ; and the -said HeUry 
no longer entitled to use ^r fellow 
proceedings in his orwn mnaM-/ ^« 
cutnstances it id^ prpper and neees-« 
ther prDce»edhigs in the sequestration 
, tiU the nutter be taken up by the 
*r the comsnissiou of 4>ailkruptcy 
k.' -• - 

m states, that theobjectdf all these 
6 create an Undue prejudice against 
ireby to interfere wiHt the iidtmnfs-^ 
istice : That theallegatioito in iSiese 
tlse in themselnes : That ^be^ had 
r Bcbtt^n the frill ^ktto^l^agte 4hat 
Pfaat the irhole was af dedde t^illul** 
icibtrived^ by ^Mif'SM^fc^^^^^^^ 
loenoing the decision^c^ th^^Uiri^H^ 

^iiU^h^l^i^ ht^pir to d%t^hii 




m 



m^m^M'^m^ttm 



Nid 






'The petition prayed for warrant ^^aiifviok m^^bk 
Archibald Scott and Thomas Small ; and thereafte] 
* ) iliiickisnehrpahiriimeitt ^port tlieni finr tiieir conii 
sMVtfcfe Mitlwraty o£ tbi$ Court, ia^^^ 
^iBbikse'of its fonhs, a& your Loidriiiipft itety^tl 
*^pA]per; Kserving always to the pfetitac6ieir^iaad 
'^cwnpmiy he rapiieseiits, their clmd of daniagwa 

^^^hecDtt^ inf fatsttmw^, after detaitlng tlfe^eiiciiiiii 
cf9froiki^ii4iieii he maintained that he was jiuttdfie 
mulcifig th& Matements complained oi> plMded^ 
the cimiplaint was incompetent. It viisr at^the 
stance of Mr Johnston alone^ without ^metiank d 
poUlo prosecutor. It complamed ttA cbateibp 
tbft airthority oi the Court, and an abuse «f it&^Oi 
Bveil if the whole £scts sttfted in the p^ti^n wmH 
they wovM not amount to any ctotempt of tho'itttl 
ty of the Court. The petitioner has nb interoBV* 
QOQseqtientty', no title, to insist fdr punishment,' i 
ifitltiere had b^dn such contempt of CoUM. Hirxi 
Minedy is in an acdon of diEimagtes. Mr Seott^ tga 
vrhom the complaint is principally direoted^^ii^ n 
Ki^ber of Court ; and these ib no authority feMi 
ing such a proceeding as that complaSnedDf the fnl 
tfm^iBfHiimary ioomphdnt, without this toueao^yst 
Lo0dt AdvAcatf ; ' - : - ^ -.. . r ^.v -n-di, 

; tiiWi^ M^ Bmall ifc was >an9ioert^d^^hBi^h&h0ii )i 
^itiMyiqAmttia information of his clf^nt,^ JlfrS^ 
lElidtfTthe papsts :had )been ^ ^pr^pered by ^^Mr^S^tti 
Mhi. had p^asaatbd Ihetn ai^cbiNUn^ td thi div^ 
wh^hfhvAhUdjuehre^i He Imi, th^n^om^^^^' 
thing but what he was bound to do on behalf of 



f^t:t0«b^^i^, 



«91r 



efct.,'r-; vi'.iv/ V.'! h-rrr^-'M noiili-a ^ysYCP^*^ 

od M eotaptiini apaxml^ Jtfr ^filtiatt ; 
dy saccoiding taihe directitms^eCtliis 
la vitig aceepted liie ^mptDjin^ «s 
bofttnd to do^sfo^ Tliat an agost was 
facts funiisl)^ to him by his clients 
laof; aiid thathtwiais.inoiFeiisyiitaBi- 
rf these. Howler ImpfohaUe^thef 
init it was bis dii^. to statetthemlto 
Uent iuisted ttpOB it. With i^cganl 
majority of tho CoQrt ocnkctuniedifA 
^V^ improper his conduct may^bafre 
eleraat grtwnd for a pettttifp^ asd^ 
mgh his stateitteiit might be loilkiin^ 
• oratempt of ' the au^oriiy < of tiit 
eof itsfomis. Itwastheobgteetof 
[Cation in the BiU^Chamher'tpatay 
mce, and tiiis uras fireqneiitlp dime 
' that which thejJoiew not to be 
irty not being a member ci Ckmrt, 
ould form no relevant gitainid< of ^ a 
hunt. .■••■■- •• ■ ■• \^ i\ >vHy^\^ ^- 
iJb»ented>-<^Hffli LordsfaiproMisidered 
re a fraudulent attem^ihy(^i xbmxt^ 
on pretences which the bankrupt 
to dtop tbeproceediiigs (^ iU €Wrilrt» 
16 ^per ixNii^e of jodicialprQp^^ 
t if^l^riQllU3f torf the ! ipeti^ai^ f^hMi 
^m.f^iw^iFetTidiaBactorl ai Mdgpes^ 
ito jpofiisHS aofd.fl wasftfrtirdatjr'to 




m 



JffiQfi|I(^S,OFJPHS l^f. 



i^Ju. It^ 



Scott, Ac. 



' .Find ^enetition aod Toinrirl j^f n t .ijciyleypi^t {|g>i; 
*.,ibe T^peind^t^ 4ri^bald Soott ;, ^, tliqr^f)(e, i 

* anJiss the same, and decern; r(sejnii|fp,t'^>(^i"J 
' d^m^pes at the instance of the petji<ftqae«rs>>^d 
^Jwif^i^^ret^gimaXt ^a,«cprd8 : |ltM<fia4 m fipcpei 

* dfi^j^ tbe j^d . A rcbibald Sotft; ap^ ay t« j|lie 
' spondent, Thomas Small, alsod^mias.tlie^wippl; 
'. ^t^jpJidter, and deeern ; find him £ivUt)ed ((^^is 
^flenses.'. ,• . ^ r -i. 

For t^omplaintf, Jameaont Ad. Anderton. Bistet 

•■-■-- Moni$ott, Agents. For RespoiideiitB,' Plat Bibert 
The Small, W. & Agent. D. CWrk. 

1 



SECOND DIVISION, 



No. XLV. 



14 JfOnwtrii VBii 



DUNDAS'S TJIUSTJEJS ,, , 
agtoMst 
WieiDDERBUBN DUNDAS, anp Ot^jehs^ 



W^ 



:s 



Appjudbate AND Repeobatsu-^Fo^i^ign^^ i5i 
jKon hmingf hy a deed emquted in Scotlaindi, 
cording to the Scots Jbrm^ conveyed ai^ eUf^xA 
a^d in rS^land, together wititherefi^MfJ 
pp-tjfr U tm8tees:-^0MMd that his ieir-iftrim^ i 
if entitled to take ^ JSngfifik estate ab. uilwgt 

wt ^t;renderiiig that uUOe^ tq the fmqim^^^ 



.*mttv 



"• , ) 
1.''.* . 



^H^ iat^ Gen^nl PraacU pfinflas^ A ' W?1^)W of i& 
landi, a^d who h^d ajsq hi3 domicile in ihi^ couaj 
txicuttd a nwrtis causa settlemtnt and dispo8itioii» 



.i^%rmmm 



293 



iAifc^^i^^ attwmed the estate pill^^ 

Btea'WtlMn^iBe'Hfertles of Ber-Tm^^es^^ 
tf ^Sb]^Mikd, to ii ' ttifebs , who were — L, 
Miiivert ttiewfitolrbf his property ^^^7^;^"^ 
r execi:^ilg^ the tsi&M' purposes of ^''^^^i'^ 
^ the reiidtid hi ei^ual portious 

died, aend^ t«s stirrived by four 
erty at the time of his death, be- 
kmsoa Seal, consisted of a landed 
md of moveable property of very 

aboFe mentioned wm executed lit 
^ to th&Seota form, but not being 
tb^d in presence of three witneBses, 
fldri^, that,, by the law of Eng- 
ub, 29 Car, IL c. 8) it was ineffec- 
kce of the estate of Banson Seal. 
M, the eldest son of the General, 
^y, to tfa» estate^ /z5 iVi/^^/a/o ; and 
i^adeon his behalf for a share of 
hiis father's Settlement, along with 

sr tried in a multtplepoinding raised 
Brhich dtfbM Were entered for Wed- 
nd 4i!8 tutor udliU^, on the otie 
yonngerehadren, and their tutors 
ediher. The liord Ordinary took 
im tarns; aivdii^ed the following 
jritfe^fte vctti^e, tbfe Lord Ordinary 
^Md JyMi^eiiB t&t ittie last casede- 
rt in ^rireumstanees iHjt similar to 
ag the mplieation of the principles 
r^^^yi^s <^^ sort, places 

fmal^^rW-v^. The Lord 



*A 



«i94 



1)fl<3IBJfbl*& dP THE 



]#9aii.lii9. 









'-#. 



c^^/ii #iis axlinitted oH til han^s^ bbtliPb)t fill 
^^^^^^ dildSc^tt&Wwy^rs, that the law of ii^ jttAiti 
^^SJfc ' tti^robate in Scotland, and the law' of nik^ 
^•««^ : I jEngland, are to the samfe effect ; asMlithut thtjr 

• npply^ wherever it is dear that a teettiiot hn 

• tended to bequeathe or convey a i^tibjeet/tal 
^ liEdled'to do so in a legsd technical nuamef; I 
^ shcfa case, the person td whom that subject hA 
^ or falh, through the failure of the prc^yer tedn 
*' conveyance, and which he would not have f 

• the deed had been technically forikuily haa;^ 

^ separate interest in the deed, and, while he cU 

^ that separate interest, claims also the subject ii 

^ veyed away from him informally — ^he will nothaj 

^ ndtted to take both. InScotlM(kl> the law of a]i| 

'^ bate and reprobate applies — ^in Edgland^thatof i 

' tion. Both go to tibis, that the person may m 

^ his election, and take one, vis. either take tJbe'd 

^ arising out of the deed, if the testator^s wheto 

'^ tentiohs have effect, or the stibject Hot terhoio 

^ * coriveyed—^but not both* i| 

^ ^ Now, in this case, there is no question that 

* la!w of Scotland is the rule of guidaace. The j 
^ General Dundas was a native of Scotland/ and doi 
^^edinit, and left a deed executed in tine £c(^ 
^ form. Th^e is no room fw questioning hisint 
f/tions with regard to th^ prop^^y called SmbomSk 
^ blttiat^d within the Berwick bounfa^ It iacmwj 
^ by 8^fl6 d^sciription to his^ tmaieeSy ahing iriliiii 

'^t&^it!8t of the landed prop^tf sitttat^iintflcolbi 
V2f ikUj ^^ ttii^, and id ^dmitOed to b# scg itii9M>w 

'V«6' th^dee!d'ni6t having 4)eenf esmxttii^^iifbei^ 

^:ibf iii tei tb^t^aifiy' S«a^ Seal (oitUe itftstec 



JRff.OJBVr^jpilSI^ 



m 



Mme^ wa; Jio^tu t,!^; . his liiii^h^did Du^wrtTj 

9tfaef^ tl)e4awof.ftppip)^^re- — — 
w]ier!?lQr be ■ hiumsI; lu^ke . hw ^hoictfli^g^^*^ 
by ^nsoBL SenU. of ^ lefcit f h^; |old ''^"'"iw^ 
^ and take bis sbai^evPf ?tlw',^^ole 
peraenal, left by hi$:£atbe]r<i Tbew 
rdi^ary's views of this, case. ^a^.jfire- 
t parties desire to he heard afte;r. the 
losed^ or if they would wii^ to J^ve 
he Court Qjoi! eases, thfiXQrd.Qrdi* 
r them ia either.' r, * 

pkaded^I. That hei^gs entiled to 
succes^Bon conveyed to.hiin by an 
out heiug bound to ccdlate the for^gn 
t, where noting is taken Jn thecha- 
leir, or under the l^awof Seotl^nd, 
eign heir cannot beafff^cted by prin* 
\y on the .law of Scotland ; I(q3S r. 
me 17d7 (Mar. 4631) ; . revec;sed on 
mber 1797. The case of Rqbentson 
i*eb« 18179 rested oji a different prin* 
^e heir, succeeding to . the foreign 
tdtorio^ making a claim eompeti^l^ to 
le law of Scotland ; and a^ he dt^ose 
i- the prinlege , of that Jaw,, lyhich 
umB, 8hariein>theiao,v^bl^^9j^99eg. 

iQWd 1p ooipply wjUl? % Qp^ition 

Betskyi/wAfrevfMT s^^»afe4j; VJtV^^f af . 

ji shareypf Jt^^injeajReck of 4n ex- 




tm 



nSGlI8aB0M%OFl ZHR 



N 



Buittov pri^ediof ithe.beilit€ftjof: hia!i)«qiiest,''feiir.'takaB|^ 

-— i* vtUd le^ipsefiBiom of ' his aaoeBboa^ inioAhaatto jIi 

f^v»* >. IL ThiU;ip^i«aM«iiifceedingbjnthet^^ 

tioftrettl estate^ in tbe ckAhubteIr of hesvateUiM^ 
afibrwmchr tdgiming pemondl bnidto uMdcr Hiitifl 
Moiit^nriiiA/ bf tbat law^ is not^ m point ofSbi 
kgal conv^fance of uracil paH^wrtjpv ^ mot ih a i 
doa te wkkhbe^eaubeflaid taa|i^ut>bate:siiB 
fcate tbe same deed itide EngUeh caats^ TMbm 
WoodfdiTd, U Fesey^mf^^saOi Sb^man r^OtoO^ 
8 Fesey, 481-496 ; Hill v. Greenbaxd:, S Aiiien^ 
aiBl in Scodaiid, RoteirtMa tv BobnlMB^ 16ih 
181^; and Trotter 0. Trotter^ dtii I>w.:l«ia6i 1m 
oaaeiof Caiiiiiiigliain 9. Gamer^ 17tb Jaau 1788/i 
617V ^^ ^^^ appears to haveibeen hDlotfcapli^ted 
aeqii^tly did sot require the staifcatdrjt aolenaHli 
Scoflaad ; and in Kecs v. Wanchopei^Howe oCiLf 
8d Mar 1»^9' 1 ^%l, 1-41, tiie died. fi^. tw 
the heritage was conveyed away from /tii6 Beir 
not null by the law of ScoUaid, biitf»% iiddociU 
his instance^ and was, upon that gnnspid^ ^adiaittfi 
be usled in evidence to shew th^ testatorte in 
tkm ; Emxl of Dalkeith fi. Book, 17S9^fMm 4M 
Biindaa v. Dundas, a5th Febi Vt»B, (Mnr^.Mfi 
reversed on appeal; Henderson f). WilMto^i&cujtt 
JamlTW^ (Mar. 1A^444) TOVvned ok .sppeii t>^ 

The yoftnger <Aildr0n 4iiwiiwrwi^l-7l%^ 
tloa ^ n d^ed nuist be Wgiilai»d;*> othft^l** 
the country in which it was executedrr If^^ 
Blain, sad Jaly 1760, (Mor. 4611) ; Trotterj:^Ti 
ter, 5th Dw. isse. 



RTov^smtmasBis 



i»! 



indilate^ an inCrafim to opn vtjV ^^^SlSrAi^ 

ikerof the^ dabd; Guttohigiiiun r; 

758, (Mar. 617) ; Kers v. WaiKhu^JJIS^ 
iordsi «1 May iSlft 1 JW^ a-^*^*v%. y 
r Duadaa r; Buiidas ia 17BS|» nA 
OB in 1797, Mlated entindif to tklar 
rmal 4eeds co&teyUig heiiteUe proM 
^If' to the pfewnl; question^ lliat^ 
ilkeitii «. Bo<dc^ id eoritnof to did 
ingham i>. Lftdy SetnpiH, 5th Julj^ 
()r and Gn^aa r^ Boyd, ]LOtb I>e«« 

and extent of ^tiie oUigations ajSeeb* 
JO property, whether taken ab inta^'* 
m of the decerned, mudt be fegulat^ 
the country where the auccession^ 
by which the consequent oUiga^ 
4 Ejuiloch V. Fullerfon, 12th Jan^ 
I ; Rebertste t^. M^Veaa^ 18tfa Febi 
t. Robertson, 16th Feb. 1816 ; and 
..5th Dbc. 1826. 

[icipie of approbate andreprobat^ 
law of Scotland, a person who re« 
to the intenticm c^ a. testator, as 
Scndar deed, is not'altowed to take 
. aame detd« The , benefit which 
Id todiiin UDder tha deed .!» iMldto 
applied to compensate the loss sns-^ 
osal ; ErMm, B. ui. tit 9, $ 10. 
Ttet^fiiteed la tiie^^^I^^ iMds 
«« «k>Wattiihope^ Sd May 1819 (t 



:r)'^y^ -ti;/; 



J \. ('■H)-? 



* 'i ■'■■ f ■ ; ■ V . ■ 



Enex and Mary Ker «. W&uchope and others is 
iont of the Court of Sasiioii ; but an account of it 




l' It -1^ . •■ ■ I. m -mz^ 

3? l-v;: :- V ff 



:(i- 




«» 



^^^SjCpONa.QF THE 



N( 



^tiii?" -^ Owr/ wweof apiiiian that the present 

Dundii*! • exactly the coaverse <rf that of Trotter v, Trotte; 

x^SlT^ Dec 1826 ; and that the siMPe principles which 

— 8^-i^- pelled theCourty in that clwe, to resort to the opi 

ilj^^ti^tli'^ of English gounsrf^ in order to ascertain the i 

fm^ fc tion of an Eng^h testator, expressed in a deed 

cuted, according to the law of England, called 

them in the present instance to interpret tlie de 

a Scotsman executed in Scotland according to th( 

of this country ; and that, hy the law of Scot 

there could be no doubt that General Duodas's ii 

tion with regard to the estate of Sanson Seal 

sufficiently expressed to put his heir to his oj 



ttmy t>e fbunci in I BSgh, 1-41. The drcumstances were m fuU^ 
^ohn, Duke olT Roxbaighe, executed a tettleineTi^ by vhlch he ton 
tke whole of hit unentailed property, real an well as persoimLi to tr 
for the purposes of sale, &c. and payment ni' iegadeit; aiid tbtrr 
directed them to vest the residue in the public (\irAs^ or upon 
table security, and to pay the annual dividendji or interest to his « 
Ladies Essex and Marj, during thdr joint Htcs, aod to the surrWor 
upon the death of the sunriyor, to pay over the whole residue tu a 
executors in the proportions specified in the deed« Th^ IMIsm K 
heirs at law of their brother^ reduced this deed, upon the head of deatl 
inso fiur as it contained a conveyance ofhcritabb prupcrtj situil 
Scotland to their prejudice; and thereafter damped ilieir liftrcnt iul 
in the other funds conveyed to the trustees. They maintained tbit i 
OB two grounds.— Ftrsl, on the settlement in tbetr favour in the ' 
which they had only reduced in so fiur as it was a convejancc of b«r 
to their prejudice; and, tecopdlif^ they pleaded, in case it should be i 
that they could not approbate and reprobate the same deed, that the 
ceeds and interests of the trust Ainds, during their joint Uv&f snd tfa 
the survivor, remained in boms of the testator, not having been beqat^ 
to the residuary legatees i and, consequently, that they devolved to ) 
as executors mk i ninM oot their deceased brother. But the Court of 
pittn, and afterwaxds the House of Lords more explicitly, ' deciaml 

* they could have no chum to a life-interest in the personal estate 

* ve3nBd to the trustees, either as next of kin, or in any other wnr/ 
Mr lUigfa has annexed to this report an acv^ount of the proe^oii 

the Court of Chancery in England betwaen the parlies, in the m 
Cuaninghm, in* ih Osiner, referred to by Lord KameS} m ha i*poi 
that ewe. 



^" 






i^ 



in'' tills "counfcnr^iinder ^^^oj-iS?*- 

late and reprobatp in this cas^^6 ir^p^'n^-^r^- ^ 
if tlie faw altbgel^er. ,|^^ o^tm^ ^^UStSt^ 
" TrcAtfer, was, that fiie Intention 6t^«^» 
^(^ whiefi was tb^te gathered from 
the n^ords^and that we were entitied 
urselves^. In the presenf case^ I a^n 
Lordships^ that General pundas^as 
tion sufficiently clea)rty; and that we 
> his deed, by preventing the party 
in so far as it conveys the TInglisli 
benefit under It in other resjpects. 

Lterlocutor wds pronounced u^\T)xei 
that, if Wedderbur^rDttBdotfishall 
he reil estate situated in Bnglandi^' 
ering the same to the purposes^ o^ 
mot be eii^tleid ta dafsi fmder i!b€ 
Kare of the heritable and' ihoyeable 
id thereby cMiveyed-ta tiie tniBtoiat 



glfHe. Act. SoUGm.(f!ope) p.Djmd^s. 
c. ' (Moncreiff) .Smythe. T. Bruce ^ junl 
I Cowari, W. S. Agents. F. Clerk. 

, , ..-. : ....•,,, ... u.,/. 






' l.tj^f.r^trr^ fC- '.'■■r^c 







■ i' 







aoa 



DEOISBaKS lOF HSBB 



X* 



•mI 



,^-)->; r 



'J V^ 



'/n p^ji 



.( i 



SECOXTD DirmiON. 



5'J 



I J' ti/J.-bn 



KoiXLVL 



aMITH Al^B OtHEU -? II 

against n 

Tbk bank of SCOTLAND, i i ; 



GArTJDHiER. — Cautioners of a hani-^ngent ^Jm 
andJutw^etrmnMOctions^ liberated JwmUbeirTijh 

J /loit^ in densequence, ^ irreguhritieM im^kewg 
.q^SmlxoMduet^ tvlickjormed a mmA^reaemJ^ 
quiring the security, having been concetded^^ 
&idm, uiAmgh the Mani tJoae iMt- amtareieli 
p^ntifjejha^de eomnUitidhyike^agmt^vidcfid 
oacasiontd ^e lose claimed from the surekeexi 

iwtbeytar 17944 Alescander 'Patenon waslsppm 
egent of the Bank of Scotland in Tfanrso^ mod^ 
Hifaand, along iwilih oerUim oo^oUigQnts^ <&r l&li 
actions in that character. n ^ inf^f 

Paterson's salary was at first L.ISIO, andria 
wards L.140 a-year. Subsequent to his appohiilii 
he engaged iextensively in tradei^ and partK^aii 
dealings in grain. It did not appear thiat he^ 
ooriginally possessed €iP capital; and tbefiUidE 
quired for his various speculations seemcfaie^ 
hare; been supplied from two sourceat^tlii oiK 
ing' an «cciunulatlon of sniaU snnMi de^oeitedril 
kaad^t ctt interest by nu^lerous individuals, iLiid w 
wt'ih notientesed iiL the ]Bank'a'b«o4a.ii ilnt^fid 
tqnhifr practice in this matter, ^^ B afte iil a n rnaiHrt 
tbt ioilbldsgiktter. tiQ>.*faa hiCe Mi(;^fionnCar^H 
want t^ AerBaiA^r fvk^k^ 



V 



1^ 



IT4}P BESSIOSl 



Ml 



€s ■VtvoMffl 



Hty df thd Difectorsj shcrtrtly be- * v^^;^^* 
ibef 1801 By tWd day's post> IsMith, «c. •. 
>me queries ^firoaii fl>6 Bank; ftid,2j^*^*^^ 
lesd, I thitik it pi^per to mention 
, that I have cm sothe ocdask^d 
)dged with nke on IntefeBt tomf 
; but, in tteite eases, the ownei*^ 
li my own |>dr80Bal security. Thii 
the necessity 4f my applying to any 

discount a bill for my accomnKv- 
iid not eonsider it as* doii^ aaiy 
Itidice^f the Bank Howeirer, if 
i ddtie vnong in doing this, I shall 
in future, and bring any sums ixt 
3atik debit ocedsionally/ 
ter having coiamnnicaled this letiei' 
her of Uie bank^s offikrerd, angered 
iVe canimt see any imf^t^prieiy ia 
noney od your own account, when 
ly the party lending that it iis^ f9# 
)rour own security.' 
riiidpal means of^ speculation was 

which, as aftetrHrards turned cmt^ 
etict of using imwatrintably and 
EU!gse extent! 

visited by Mt Jamas Mairshall ^i th^ 
li Septeihber 1803 } end his report 
tef stating that tkd amomitof cash 
wad L;2474, whidi dort^sponded 
Hne cash-book, proceeds ad Mlows i 
r poflKttd n^ With great accuracy, 
t'tegttlarly drawn, aceqitedy asft 
v^eas^y irith the bookSin Tfaer 
H ttOt over Avmtn^ TSie stalnp^ 
b£ ibmlAMjriibQrfrowedrhisnfte* 




s<^ 



BECaaiOWS'OETHB 



Kb. 



}4 Jan. lezdt < 



Sm th, ^c «' 
Ba^koiScoU.bad, 



AnytQl^ntl; The pftstducr bills ^mdimied to Ll8 
l-Ss. 8d: none of which I have reastm to believe 



Cautioner, 



' The agent Still continues to l>e cattensiveljr 

* gaged in business and fanning^ and seems at ; 

* sent to be pindied foi: motley. His own bjDs 
f the office amount to L.SOOO, besides L J 500 of 
f acffeptances remitted to him through the bank fi 

* Montrose. These bills were drawn on him by 
1 clerk for meal, which he sent him ta pctrAnfik 
*. Montrose ; and being discounted th^e, the Bwok\ 
' Mr Brand*s security for them, tmless, which- i 
'hoped will not be the case, this should be lost 

* Undue negotiation.* 

The reporter further states^ that the transactioitt 
this branch were becoming more numerous ; fbd 
gives it as his opinion, that there Was a prospi^Ji 
considerable increase of business* ^ 

But it appeared from letters addressed to Eaters 
by the Bank's secretary, a short timie befdrfe tie ds 
of this report, that the Directors, so far from desiri 
an increase of business, at lelEist' in the disc(nniti 
of bills, gave peremptory instructions to Patdhson 
Were Indeed then given also to their other agen 
gradually to restrict the amount of discerant». Up 
the subject of these comrnUUications, Pateraon ot( 
a letter to one of the Directors (Sir John SInelair) 
which ht urges the inexpediency of the mecfimre, 
marking that ^it will bear particularly hard! upoD i 

* as agent, and from my engagentpnts and othchrk 
. It further appeared that this Director, at Jea^, w 

aware that Patersoif wfes in pecuniary dlffihilti 
previous to Mr Ma^halVs report ; and th4t,'4hej 
after, the subject of this ageocy bdng under Aew 
Rideration of the Directors, j3(flne. Wf^thfW 1»*P«^ 
that it should hk withdrawn,- becims0 tbey> Mm ti 




WrjQF^^^^m^ 



m 



ob9. S|iici]^(whkb was generally ^^^J^* 
of PateiBoa'8 ^dow) tbat both he smith, 
Armadale, who was also thenia Di-^^^*^^^"*^ 
isfied with the conduct of the agent; 
obeying the orders of the Bank as 
I own bills ;. but that the deponent 
le iSVggf^t^ the propriety of <;on4 
[uiripg the agent to find additional 

K>n the SOth December 1803/ the 
6 written by the secretary to Pater- 
rtors having under review the cau- 
ven by tihe agents, finding that some 
^rs are dead, and at the same time 
the present amount of your caution 
the business done in Thurso, they 
amount of your caution may be 
ew bond for that sum, ot by a bond 
des, corroborating the present one 
obliging themselves for L.50Q0 in 

mswered by Paterson in the foUow- 
tay have littte difficulty in getting 
ties for L.5000 ; and as the present' 
(^ceptionable, I hope the Directors 
any thing more than to find tW 
ty;&c. 

March 1804, Paterson communis 
'. the sureties he proposed, accom- 
newed request, that they should be 
ir^ditional cautioners forX<.5000/ 
;p,{hi8 re^piest ; and, upon' the 7th oF 
3[jf.l9]:waifded th^ lulcUtloilal boiid of 
^ lof; J[^.5QQ(V la ^rder to be ^xe^ 
J^fH^uf^tileSr J^ibw numerous pro^' 
fiMtV^ tr^wrtioiiS of > the-ngeiit; 




Wi 



momomjofmm 



m 



pflWrrfllf^ 



s^^&Ttt • Jtl»qr,,it in hereby pra)|Fide4 and dedaiitd, wift 
illl^l^^f^^^'-Vprfjudipetatte genor^ity ioreeai*, ^h*» t^ 

^ wHiole QbUgtute befoore xiamed, aloag witi| tl^. 

^ gant^ in the brad befo^ p^^ntfoii^ (viz. tihoc^V] 

* bi)ii4 ^f c^uti<3ffl) sball, jamtly aid ^yeffi^j^. 
' upon us Uie sole risk of aU billS| promissacji^ 
^ and pther obUgalions of evtery \dpA, to fa^ tiflpei 

* discounted by me, the said Alexander PatexBfBf 
5 of al} tr£ip8a(:tims mvie ]iy: me, y^i}^ I jbave^i 
' 99 i^ent % th^ said Bank, and aliNi of aU 1mU%' 

V jpi;iisspryiiQte9» and ptber obligations of ei[ery4 

* to be hereafter discountdd by me, the aaid Aki 

* der Paterson, and of all bills f^i^ Londoqi ^ < 

V whfre, M'l^iOh I, the said Alexander Pat€Mr8on,i 
^ di^poi^nt or puLrcliase in the execution of the id 
^ pfl$c^ ami U'ust ; sp, that^ in ease of any Ipss hy 
^ d^bti^, ox biUs which have been, or whi^b P^^ 
i pen to be, purchased or discouiited by mf, on v 
^. jiidy other obligatiojpi hi whatever iforo^ granto 
^ received by me as agent foresaid, s^ch losa shall 
f jipcm, and be sustained by ine, the said Alema 
- jpaterson, and by us the said c(Hibliganla h« 
i in^ntioned^ all jo^itly and seyeraUy, andsaj 
f thprepf shall b^ aust^ned by the ^aid Grovepior} 
i Coq^pany.' : 

^his bond, having been signed hy iPatersam^Mid 
p^:9p(}§ed f;a)itie^i^€Sir o^ %h9 ls9t page only, a^ iflp^ 
di^ly; ti^n^ijUfd. tp £dinbur^ to the Smh'a^sei 
twj/r^ whpi F^v^d i^ Vifton tiie 8d of Jufy, and «eslM 
^9tw^«d it t<tP^*er9p«^ withi^ )ett?r r^^ifiaigitkf 
??tt^il)4 mvo^i^tely ^ut^scri^ lyy aH ; th^nlM 

W8»«»/ Wi )ih49 J0-tnuni«ftt^^ Aji4. iOf *f/# 
d9M^/.t^f«fSK^ ipojiw film M^Slmn^iVs^*^ 






«!» 



l'«6iittl*ciHbeWio'ttidflMttlliteePI C'****^ 
Ife iM>rei>tMVf%«%0Ba&Er1>eto t6o' 
1 the i«arate oF dday' dftdti USdio 

' tbese letters were written, the Bi-' 
etkMEir t<> JToliil Sim, the bl^cer of 
^i tteedrdiiig to anmiarcn^tdih, io 
IM north <tf the Taf . Accbrdiri|;- 
In^eeiiA^ f^Hain dther bi^Altitiek, 
the 14th Juljr, and (S^tovered the 
r to be in the ditnati(yn describeiAby 
g letter; which he addressed td the 
k>— * I arriviedhere JAst rilght; biit, ' 
rabfieiice^f Mt PatersoA a^ Mr 
tdttt, \rho hfe* gofle to the coudtiy 
Wbm tMfst the nefce^itf df pdsij^il* ' 
s^tneflK 6( 'tttf ex:aihifialioti df tfie 
i tintil'tfaisi lAOriiing. The> sttopidMs ^ 
toe 1A4M p^t, been ehtertalilied Mib, 
ie of matters at this brMbb, T^iHa 
yrm jnt>u, prote^ by my ilispectldft, 
too well founded. The AkStH^ticy 
to no 1#8&^ a sUte than lJ.l.$fi90. 
mo1i{vriib j^etttritM thl» l»dl^tt^) 
Us to the amoant 61 1/.SOA(^ ilie 
which hBT& Ib&n MwrnaMl 'itt i3tl& 
ii»eeiiiittddatkm, atid< ai^ !i^dW ;pii;^^ 
ki^ >hi^ <^iiyideMH^«f;§«tiy 'g^ 
M^of HM ftHfifr b^ b^Dtf 'fenWM^ 
^raifa^liiftfKIMfiKIt^^ iiH»w9»fS'^ 

If tltil4tfe^ex{ifee# Wl^ lOld^ii ' 




9^.r 



0S$»EffiK^S^.OFrTWr 



Ni 



14 JmHimi^ l^fgi40j^^ 




^^..^ "' >4Qi4y£lQin^^ltoBa9kfthe ^tent of acd6mtotah# 
^(U«KH«ufcteiWhi^ Mj* I^ Idn 

* ]td^m*jfi»^ of GQikmng in th& books « ]»& ovnot s 
^,i^))i9i ite Mita dtf^w^ of a biU> h9a^nd>sfeittiA6di 

* of some other person, whose name does xuitHii^ 
' ipp the bin ajt all' - ,/ 

Mr JSimb^ing' after wards examined as a ^nrHme 
this ceuse^ with reference to the alkgedswapicMBl 
tertained by the Bank« or its officers^ as to Futexi 
nwkna^ment) and alluded to in the fonmr .^ tlu 
ters now quotedi deponed that, wheot ^xaminrng 
stetes transmitted to the head office in Edmbirgl 
Fater^nf with a view to the inspection irfhift age 
he (^he deponent) * was particularly stmick wkh 

* ^amoujsit of Bank of Scotland notes in the hand 
' the agex^t at Thurso, which.were somewhaft beta 

* JU17«000 and L.18,000, and ihat this aiim i«s ,j 

* dually impressing for some months bef(»*e; and > 
' was the subject of observation betwixt the ^defidi 
^ itnd Mr Marshall, the accountant : Thai, finoonj 
' reftpcumstanee, joined to the agent being engagm 

* extensive trade, the deponent, and Mr Marshall i 
' as he tbii^ks, ' wei*e impressed with the ' idea>duKt 

* Wfui not right in that branch.* - • > 
^The tfurcumstance, indeed, of this : apparent aconi 

latiOn/of the Bank's notes in the agei^^s hanrirJ 
betti previously; under Uie immediate conaideratiei 
the J9d];e6tqrs themdelvesw Fory in ^ repovt^vf a^^ 
insttee^ of th^ttown number <m the Thiu^o* tearsb^ 
dateiBth January 1S04, it is atated that^ theiBiilili 
' Seotlaild's botas^Jn the i^enlfs faaiids, iby ihtffc^ 
' fitJ^tb I>ecember^ are bbserved:*by the odi^ 

* ampunt to L44,592. Os. 7d. T^'bich, they are of o 




TRTiOWiMmBBam. 



«if 



Tfind. 



Q^V^ la tbe: dame n^pdi4;;ii]i4tiM^«^ 
LMDunted bjrtte agetit fw^Mi' «mte 

1^ and should send a ikt <tf tfatee 
]ie drawer, aoteptor/^r iiriCNnser.^' 
report (2^th March ISM) amoftg^ 
di Pateraon had not obe]^ the 
that be had neglected to jetid/^-a' 
aeountB.* > * 

lat the BanklB opinion of* PdtersMe 
968 was 8uch,that thejr did'not expefcf 
> find the additionid ^recnrity, lor 
this £eu^ evidence was led ad to 

eoilFersatiOn to various ind^idUala^ 
[les Feigttson, writer to the sig&et^ 
visiting Thurso as the Bdnk-crlawV 
Qce of th^ die^^losure 4ii Pataiton 
idvlent proceedings. In particulaiv 
* Brodie, the sh^iff^gubstkute ef 
U that she heard Mr Fergm^^liell 

the Bank was surprised thBt>Ate 
ibscrihedthe bond^' Another wi^ 
e was informed by Mr &odie that 
bim, ' that the Ban]£ had lost eoB^' 
m b^ore aaking tiie additional bond- 
bim^ — ^th^t tl^ Bank coqsiideted Mr^ 
f ing thfem with the pi^omic^e^ tbe« 
santion; and didnotiesqp^et^ifeoin' 
y had of him, that tfaeidtutioBttB' 
bond^Mhatf thigr w^se ttevarmote^ 
!iben itxcame up signed by the caio- 
It { ftbejr, the cautioners,' must have 




IfBOIBfCnrS'^'OFlUHB 



If 



Bask flC Scot* 



8n^ f^« ^ Iftie Bfinfe h«ul, if it cdtee «fi'»deiftfid/' ^^^^ ^o 
ofstou Willi i%eMih^irtoir»tlieO€uttti!»<rf4?al^^ 
ekaiiiiti«fd^!»'awitnM8^ dud depaiiecE tl^l^^icodi 
tiM with ike kteB«#), * JVf r !F<vgMo&' MlA^tl^ 

* signed by tbe cautioners; that^tlM»4ep<mMrt;^ifi 
^ ticalar, recollects a strong expression that he mad 
' 4dif t(pma»lr Uiat surprise, viz. that they wfemili 
*^Mto«^bed ag if the tonnm of Tfamso or t&^4i 
'Paris htfd besa plated at th& crdsi of EdAito 
' ^The Countess could not say whether aken^M fa 
' at this coftTiersatioh ; bat, tf ubk waS'iRit, stoi 
^ JMve been inimm^ of it by ber IsAe ktMtaxid,' 
was one of Paterson's cautioners und^ hia ft^lM 

I^ctersdin wsiis r^kioved from ti&e^igBiicy on <ki 
of August 1894; aTi^ shortly tbereaftei^^ (Otd^otfu 
ars under bis second bond raised a su^iititon^ 
threatened charge, and a rtduttidn^f the hmtf 
mlw» grspaiida;^-in particular, that^ iik&'\Mkd> 
nM ^ delivered ^iden1^-4faat tibe Smto pmpm^ 
Ihiterson to find^ additionaL security (m th^^tiiM 
fence that hia credit and timi^t were toibe enlltt^ 
tiieBistrat «f L,500a^that the subscriptions of 4ft^^ 
tioners^ were not Mtested in terssa of l^wu-tUM^ 
time tiie Bwk made thi& application^ to Patm^ ^1 

* were in the perfect knowledge tha« he was^Mt|[M| 
' bankruptcy, andnnaUe to pay them wlKrtJ]ii9if<«^t 

* due tinem ; in so much so, that, wititifr a fiiitol?^ 

* thereafter/ they ordered ti» said (J<dm)xiiiiw>i^1 

* possessiCKn of all^the Bank's^ effects un^r hiMdiaif 
' dctauded blm of the ittanag«i]liittU^-and>a»^ 
f tiiaki' «f 4he wliole real asd pmKiiia|«alit€i^rt^ 






oet^gudJbf fraud aaddecftt; aod - — 
Mm 4ke^ paf8Htr» bf do)#» wlmi 
t of tlie aboye (Btrenmstaaces, aad 
km.' 

sc 1806; found theletttra txdisAf 
Had tlia raaaona of vednetiaaBit aod' 
lers. These judgments were prd-» 

7 proof haviqg been led, os tveu:a 
erms of the act of sederunt. 
Mug entered appeals against the 
C0iirt, tbe Houae ef Lwda, in the . 
^ the {allowing Judgment :— ' Find 

<|U^j^^ if not impeachable on ^ 
to be considered m a delivered 
it the appellants, in this case, ought 
make proof of the eireuaistaBeaa : 
19 grounds for reducing the deed 
iduly obtaii^ed by coneealmeat ca^ ^ 
ieed i9 yalid, aceording to the atai* ' 
)6 ; and it is, therefore, ordered and . 
» ^aui^ be remitted bade to dta * 
n Spotittid, to consider the aaziie as 
the deed, as the same may be a£» 
stututas, or either ftf them, ha^ag ' 
ture of the deed; and that the 
I in confiidmn^^ the same,^ aa to 
t mecrk, and according to tiheir 

8 fiurther oxdeDedi that*, in case the 
ipoitaudiiJPaeaiiaidaratiM^ m^dga 

jg^TOgd^ if duly obtained, that the 
fwed & iiTQ^vof theciroiimataamv 




9m 



TmmmBfWTms 



Nc 



i4Jm-jm.€ fi^xmiHlpiAUMi^iil «4 it j^rfartbar ordered 
' ' «iij¥i%^ iliat^ ^itb them fyiiMag^ and dired 

* the said Court do review the several interloc 
^pompjained of in the said 9ppeal> and proceed 
^0\ieh review as to the sftid Court shall seem 

* and just,* 



Smithy ttc. v» 
Bank yf Scot, 
land* 



* Lord ChaneeOor Eldom, in submitting the coui«e of pioc 
which resulted in the abpve judgment, . spoke as follows: — ^ I 
^Uen the appeUents state, that thej having become caiition< 
•AleiuiAder PaCecs^, ^e re^Mm^eiitA agent . at Thu«9o ; anil be 
grossly mismanaged the affairs, apd embezzled the Ainds of tbi 
under his charge, the respondents sought to recover from the npp 
.^Iheaum of L.5000 contained in the bond i but it appeadng tti i 
pellanta that tlie de^oan^ was high^ inefuitable on tbapart of the 
aqd such as the appellants could successfully resist in polrit of hv 
^temdned to submit to the decision of the Court of Sessloa. Thi 
4i4onpey«^ grounds; and, among othex% not en tbe exprcsi 
Jtion of irayd, taking the word in its most offensive sense, but of a, 
ment from' the appellants of material circumsta^cQB, which, ihi', 
tended^ should h^ve been made Jmown io ^theni. In this nctioi 
one, and thfn.a second interlocuti^, refusju^ to ^mt to the app 
ai\y relief were pronounced by the Court of Session* There irai) 
ever, a great difference of opinion among the Judges of that Cm 
1^ futdefit ; and. the questiGnsmaterialibr the dfedsion of the e$M 
HQW <:omea before yQur Lordships, appear. <iov to be reduced to tbi 
Is^ Whether the bond in question, be an instrument wbkh ha 
well' executed ? My, If it be a legally and validly delivered evl 
^d» ^fff^ S^ppoaing that the bond labouxa undef ne^raitical obj 
Qn either of these heads, if such circumstances as to the mode in 
it was'obtained had been condescended on, as, if a proof had been d! 
ajld those dfcumstances had been proved, would have be^i sufBci 
^jatitle the appellants to re^ef in a court of law or of reqiuly ? h 
port of the first point, the aigumept of the appellanjta was built 
the acts 16i81 and 1696, under the enactments of which^ it wut an 
^ rtlie l|ond.i|i. queatipn waa deatitute of . MWnuittie&, which b? 
acts.ar^ mafle ^ss^nti^ly necessary. On the ptber h^n^ it was coi 
ed fi>r the respondents, that these acts were to be entirely laid out u 
tideraUoiv as the partiea fhemselvet aeknewledged their subseri| 
tp^^bo^ It.inll Jiift.iil ti^e irecf^h^^feiim of. yeu| Loi^«Hi»» J 
waa anxious to know whether, the diver^ty of opinto which p? 
ed among the Judges in the Court below was upon Ihi^ voiui 
Ik^ I fpspvim^j mj satia&ctiw oBtb^pg. i^fonna^, thai «« ^ 
f>e put in possession of the notes of tiie opinions of the Judg^ *^ 
occasion. These notes have since been h|inded tp me^ but thiy i 
Wh no light on this point. From these notes, hovever, U jipyf^oi^ 
rth^ ^(^dfi\ijf^Mt wnely^ thaAthe.bor^d'.was.aiit 4(ilv m<\ >^^^^ 



rfi!r OF^tiESBIDBiLi 



UT 






and was disposed of hy the Cudgels iii t^ (ibuil; '""^ ", 
rSt^ of whom were of opinion, iiutt tht bond was CdUHdhifr. 
even Plough it had b^en sent back* If 4t I^ not 
uted, or sufl^cientlj delivered at first, still it had 
?red on the 11th July, at which date it obviousl^^ 
[r Paterson, then the agent of the Bank, ttue dell* 
i r^arded as equal to the delivet7 to the Bank, foif 
With this decision of the Court below/ I am not 
'. should have wished to have known th^ opinionax^f 
>r points, and that tkej had thrown some light oi) 
i given to the statutes alluded to $ bat they haveiaof 
e» I am not disposed to enter Into the question. 
\jed is the Court below, namely, if the appellants^ 
n, had become bound for the past transactions of 
BanV. My opinion on this su^ect is decided, ta*^ 
Ir coBstruction given to the terms of the bond, th^ 
doubt, that the bond is equally applicable to pa^ 
ns. For that very reason, however, I ^teem my* 
I the greater €au^oh to the way in which this bon^ 
old appear that a perscm became surety for another, 

arrean to his employer, that employer, being ig. 
n I am clearly of opinion, that the surely mtkst h^ 
en for hotter or for wone, the conduct, character; 
'horn he became surety. But if, c^ the other hand, 
m, employing a number of agents, find one wh6ii| 
ppose not trust-worthy— one who most likely oWe^ 
ley, or who, they may have reason to suppose, owef 
ney, and call on that man to give sureties, or cau* 
in Scotland, both for his past and future deaUngs, 
out as a person who is trust-worthy, while the^f 
ground, for suspecting that he is not so i that wil| 
B or Buretiefr The appellants contend, that th^ 
f r Paterson to be esteemed a» trust^worthy, whex) 
as note 10 ; and the question for the cansideraiion 
ehiefiy this, whether, in our courts of equity, if 
idescended on in the Court of Sessioti in Scotland, 
' would be considered as enough to entitle the ap« 
f Mr Paterson, to he liberated from the obligation 
or him ? Now, if I understand the decision of the 
iFent to this — that if the cautioners of Pateraon 
It ol^thecfl^e to be true, still that this proved irov 

iber 1893, the Bank of Scotland wrote a lettei; 
iniii^ him, that the business done at th^ Bank 
reosed, they must have dme farther Sccdrityln 




ill 



UBCttSIOHa OP THE 



N 



* ^^^y CTtiOta ^ Ule bMiid, WhfeBi Ji reported of dat< 
8mitii,&o.«ur Jamiftiiy tSSa ; iee also Miiiions of the Jud* 

land. ■ — 

» respect of it TThe letter was ift th^se terms :— <^ The directora 
"under review the cautionary tends given by tht ageuts^ find 
<< some of youf cautioners ate dead, and at the same time con 
^ that the |iresent amount of your caution is too atuall for tbe 

* done at Thurso, they desire that the amount of yov*r caution 
** li.t 0,000, hy a new hond for that sum, or by a bond for new ae 

* corroborating the present one for L.SOOO.* In the preceding I 

* ber, the Bank had sent a Mr Marshall^ an agent of thek 

* Thurso, to look into Mr Paterson^s accounts * aiicl, as* Hat^ 

* appellants, instead of (ia^ing inunedlate access to tht'in, ts he c 

* have had, and as thight have been expected^ had every thlnjf b 

* lect, the books of account were not forthcoming, nor ronld he d 

* them tin he had wdted for four days in tht place. ThJs !^Ir I 

* made a report t6 the Bank as to the stat^ in which he fuund Pi 

* accounts, and as to his reception at Tlhurs6 ; and the appellan) 

< for production of thb report in the court below. It «'as proprlj 

* however, that the C6urt of Session in Scotland had not the same 
« to compel production of a papef of that kind, as out courts d 

* have. But if, as the appelhints alleged, Paterson had r^Ify U 
■ to baffle all the attempts of Marshall for four days together, 

* inspection of fttcrson's accounts with the Bank, and Marshall 

* reported to the Bank, though' the Court of Session could not con: 
« respondents to produce that report, still Marshall himself might 

* mined aS a witness with respect to tie circumalanoe wrhieh then tool 

* and if so, am^ if he were to give such an account of what then (k 

* and which, as in duty bound, he must bepresnm^d to ha\x commtJ 

* in his report to the Bank, as may put fhe Bant in m^/W J^dc wit 
^ sureties^ will it be contended' that, in ducA drcumstances, full eWec 
« to be giten to the obligation thus come under hy them ? The app 

< however, igain contend that no addition to the business of thp hi 
» the Bank at Thurso, tinder the management of Mr Faterson, ha 

* place, so « to rende:^ any additidnal sureties on his part necessari 

* the statement held out in the respondents' letter on this suhjeft' 
« consistent with the feet, and that, instead of the additional siufli, a 

< ing to L.iO,000 being necessary, the original sum of I..5000, for 

* their manager, Mr Paterson, had already given sufficient securil 

* Tery ample and sufficient to cover all the transactions of that hank 

* 80 the appellants infer, if the se^rity which the Bank already I 

* L.A060, was sufficient to covef the transaction:? of the Thurso 1 

* that the additional security demanded by them of Patcrson, and in 

* the apipeUants w^ere induced to Join, cotlld not be rendered efl 

* The queatloD, then, is simply this. Whether the appellants shouli 

< liberty to prove the fecfii ftom which they infer that suoh is th 
^ aad that tbe bond in qua^oii wu not nMnt by the tesponJent 



jj^. i^mm^f^ 



fif 



rj, of ipife * Tk^ Emi of Filfe^ M*ii-i«t. 
smber 1825, as to t^ie growuifl ofsadu^toT.^ 

" land. . -i 



ire traosactionsy but tnefrel/ a security out of 
work their own indemnity in tranaactloiu that 
I quite satisfied that, where such an inatrument 
a fidrij taken, witli the tiew of being made ap^ 
9 to ^ftiture transactions, it may reasonably btf 
But, at the same time, there can be no doubt, \t 
e both to past and future transactiona, andt th« 
use it for the purpose merely of securing your« 
ions which are past, and do ijiot allow it to b^ 
ransactiona-i-nay, do not allow any future trans* 
At, I think, is a strong ground to shew tiiat tha 
to be applicable to future, but to past transact 
)een said aa to the visit of Mr Sim to Thurso 
tunediately after the execution of the bond in 
on that there is not much in this circumstance^ 
ich it has been principally relied on, though it 
ittle to be attended to as connected with a|]« 
Chat Sim went to Thurso in a concealed or clan<* 
Qrst appear a strong circumstance 1^ the case | 
lered, the less weight does it seem entitled V>a 
nk should be desirous of preserving some check 
ISy even where they have no particular grounda 
m. In sending confidential servants, therefore^ 
[y, they only act up to that degree of prudent 
expected ; and in sending those persons secretly^ 
opportunity of detecting any thing that may be 
; openly and at stated periods. But evei^ thia 
i makes the viait of Marshall, in the piecediog 
nc^ of considerable weight i and whether Sim 
lonth of July, for the very purpoae of looking 
M>rt made by Marshall in the preceding Septem« 
be made out by the examination of Sim himself 
strongly asserted, namely^ that those actirig at 
the Bank would as soon have expected to, see 
urgh, aa that Paterson should have been ab)e 
ich wei^ demanded of him by the Bank, and 
th? boxid in question. If this be so, is not tliis 
prove th^t the Bank themaelvea were,a«rar« that 
lter89^> afPairs ? And if these fiusta shwdd b» 
ild,tJliey not go fiir, if not completely, to make 
^9 in the ^ppeUants sumnynta an4. co^^so^n* 
|Q t(0 jah^owt t]bat. it ^ a real f^ which the qk 
rt^^JQjui]^ jof^S^ptJi^d djd know what it nA^g^t 
r i\im^^. cfl««»»Miwftfe^ but, t*Uh it it wtj^jMilr. 
know, and aUo to consider well, if a court^of 




3l4 



DECISIONS OP THE 



No. 



14 JftiL 





^ that jiidgmeni^ whi<ih.wag:qffirmtd on^^^ iihi 
1824. 



< equitj vill allow them ta iq^st 09 enforcing suich lecudt^ as tbii 

* cw was relief on by the counsel for the appellants, which I maj b 
' mitted to aHude to, it being a 6a^ which' came before mvself. A » 
' man, who had been for a long time clerk to 'the l^isfaitiiinger's Cow 

* had incurred a considerable deficit, which had gone on from ye^ to 

* a deceit, toio, which went bejond the sum for which he had given 

* surety. The Company called oh him to find additional securitj, 

* he did. When the case came before me (it never ksviDg gtmel^ 
^ an interlocutory judgment) I was of opinion, thai the obligatictn 
' not be enforced. This was my judgment, being of opinion^ tha 
^ had a servant, who I knew had acted wrong, I was net entitled to 

< another person, and to indupe him to become surety for mj scrvii 

* stating that 1 am willing to continue my confidence in him, and 
« gard him as a tnist-worthy man. If, on the contrary, so dlfferei 
' my impression, that . my idea of him was such that I would m\ 
^ treated him as trust-worthy, unless that other peraon would becoi 

* surety. If the former was the case, and the person with whom I ti 

< had equal information with myseff on the sub/ect of my scrrant 

< duct, then was it possible that his opinion mighi turn out to be 
« and mine to be wrong: But it on the contrary, I knew drcums 
« in the conduct of my servant, which weiit to render him not trusUw 

< and did not communicate those drcumstancet to Um who was 

* come surety for this servant of mine, then was he not oti an eq 

< with me in point of information in respect to this st^rvaot 

' of this opinion when tiie cas^ in question came before me, ai 
^ attempt has been made since to change my opinion* Such wj 

* opinion on which t judicially acted, and such is my opinion 
^ I therefore am of opinion, that ah opportunity should he allotr 
« the appellants, in this case, of pnsviiig t&e ftscis 'of cnn««Tmon 

* which they have ofiered to prove ; thaf^ till Some judgement i 
' nounced in the reduc^on, all proceedings in the susj^ension jhoi 

< staid ; and that the suspension ^hoJtlH fbfly depend 'on the kuve t 
« action of reduc^n. In.ti^ cirtimatanets, iftHjppBars to me^ tb 

< case has not been sifted in th^ manner it :ough6 to hsy^ b^^CB. J 

* other of your Lordships snail be of another mind, I shall carefu 

< tend to that opinion, whatever it m^y be>^«Bd) upon a considGnt 

< the whole, shall t>eg to.sub^iit.to ^ovr X^ordf^f.suc^ a judgment 
' the circumstances of tfce case, may,?eem to be projper/ 

Lord Redesdate delivered an opinion to the same efiect ; and, in pa 
lar, said that* ^ If a person, hilvixitg formerly trusted another^ begin ta 

< if he should trust him any &rther ; and tli,at b^ing ^tr<l, & tiiini 

* becomes surety for him whose credit is doubted, «uch third part v 1 

* right to complain if he ultimately be th^ sufierer. But if a prii 

< does not suggest the least doubt of the credit of his servants or othei 
' ion employed by him, knowing at the same time that he in no I 



f concealment or deception,' A cb^- Smith aic. r. 
tnfiwe» ny e re oi-dert' d ; aii^, there^?^^'*,»^°^s;ot- 
iig^'been led; and miich dbcuihenfarf ^-^ir 
, the principal parts or general im- ^'"^^*^' 
\ been stated fibove> thequiestioB was 
m i^bdch it was — ' ^^ * 



purBU€rs^''niere can be ho qaes- 
of fact, Paierson was insolvent and 
st-^ortby at the time the bank re- 
I additional security. It is also es- 
r had previously l)een made aware of 
insttceessfid sp&cidati6ns;and his pe- 
mehts, if not his actual insolvency, 
were infonned shortly before, by the 
halU tiiat Patetsdn waiS their debtor 
1500, the greater part of which con*i 
taken to himself, contraiy to his ex- 
T^e concealment from the cau- 
egularities on the part of the agent» 
oupled with the knowledge lerf his 
tnstanced, would alone be sufficient 
ik from recovering under the bond. 

meia fldea and unfair dealing to. 
ers» or at least of such gross neg- 
ts to constructive fraud, does not 
he date of Mr Marshall's repor(^ 

r the pntence thtfc th InereaM of business in thtl 
ndel^ WDL inaretse ini&e amount of hls.surat/ 
, who bftVe no access to know tha^ he has ceased 
>ecan^^ Inti^'es fbr him; that id a transaction to 
williietfghre eftct • That is a species of conduct 
ictii0^ Utad Wilt hot be^ tolerated in anj persod 
^uritjr 1^ tb^ fidelity of another. Wherever a 
A ti1is tl il ^ i tKy » it was abftoluiely neceMar/ that 

Y 



#1« 



D^cisQc^s OF ^r^ 



JH 



BHnkKyfScoU 
bnd. 



^\i!!^^ tbe cash iath^ agentVbap4s wiif^bolifteptl^^ 
smitii, &C. «. L.300p. In th^frUQ^^n?pnt;b,(wfe«rtbe Atmm 
made for additional security) tbe states transmitt 
the; ^^t to. tbe }m^^rO0fce d;^v^ 
ij^wploy^ mOAejr a^o^ntipg to abpufe Lat 
yVnd^ in tbe iaon||li of Ji;ly, juet; J[)eiiG»tt thf^juHm 
covery of tbe sit^tiqn of bis ^gaqy^ whicbi 
Paterson's removal, the money, thus apparently i 
coffers pf the Bank at Thursobi aaiono^ed tp qpp 
pfL.^P^QOO. This wa5i surely sufficient 4;p. biii 
cited 1;be suspicipns pf the Bqnk> as 14 d^^ m 
those of its officers. To allegj9 tba| tfai^ pfsepnis 
created no suspidpn in the,min4 ef j^^f £||ffatpn 
yiduced no enquiry or investigation, .is :to, 4Py# 
their management was conductj^d wilhctut, tbM( 
.jiary degree of prudence and discernment, up99 1 
.th^ pursuers were entitled to rfly; ,i^nl|!t^Jt 
be maiutained that the nature of tlif t^Qi^^c^ 
tw^een the parties did H9^ l^glj^thfit th^fiiftte 
^iit the agent as^ ^i thfir option,. tiwM?o«fell 
i^^gulAr iu the discharge pf his pflic^ dQtie& :. 
The . evidw^ on thfi ppint^ of u^4He ecm^ 
^mjes fully up to the c^e pi^hy the LprdCJhw 
jn the foUpwing pass^? pf his speech^ as ono,^ 
yrould entitle the ^autio^ei^ to, he £re^ *«*~' Ub m\ 
/ a bjidy of wen, empjoyiijg ^pjuqjber qf.^igffit^ 
/ on? of them, whpw tb^ l»v^ rejSisQO JMiiSWPW 

• tniist-worthy, Piie.^ho|no^.Uh^ pjjres thWH? 

• sums of money, or who, they m^y hjiv^.r^Olltc 

• pose, owes iHx^ \9^^fmm qf,x^^ 

• that man to give sureti^ both for h^s p^tjaqd ^ 

• dedings, thereby holding him out as a^persiop t 

• worthy, when they Jknow, or h^v^ ^9$gf^ 
f for suspecting^ that he is not so-^that ysii^lppy 

• the sureties,* ,. .; r^ : - 
But the Bank is not merdydiargeable witb^ 




imt ^F ^sasftsiON ; 



H9 



y iWlte ^Hy of positive misrepre- **•'*" *^ 
Bring the adtitional securttjr in ques-g^iilh^ 

' • Bank oH 



land. 



c. V. 



Sank had no direct communication 

previous to the execution of the bond, ^*'^'*««^' 

he letter to Paterson requiring an ex-» 

rity is to be viewed in the same light 

[ addressed to the parties whom he 

become cautioners. The ostensible 

that letter for demanding additional 

ae. The first reason assigned is, that 

nerg in the original bond were dead ; 

t three of them had died ; but seven 

\ in good credit ; and the represents* 

er wwcf also liable. This plainly, 

Kve been a false pretence. Accord^ 

epresentation of the agent that the 

Y existing bond was unquestionable^ 

departed from the proposition that 

ii# should become parties to that 

ithef reason, vir. that the amount of 

n was too small for the business done 

li equally uritrue ih fact, and tnust 

a^ the Directors to be so. This plainly 

was latterly an increase of business, 

was not title case* Indeed, an ex- 

s cannot be alleged without admit- 

inred ih vfolation of the express in^ 

ank, whose repeated orders to Pater* 

MetahWdme before the date of the 

^ diminish the amount of discounts. 

the Reasons assigned by the Bank, 

in evidence suficiently demonstrate 

ds of the liwd' Chancellor) the bond 

)- Mot Rient by tko Bmk t6 be «r 




51$ 



DECISIONS OF THE 



Nc 



^ifuiUm^* 



i^ jnn. ie29. t surety for past and future transactions, but mei 
svlit^!&c^v. * 8^€«3rfty out of Whieh the Sank meant to work 
UankofScou « own iudetnnityv in tKUaHctions which were ent 

• past.' 
' Upon ' tliese pdnciplM tbe' House of Lords pro 

jEidf {9th JuM 1824) inili^vetisiiig the judgment of 
Court in the case of Thomson v. Bank of Scotland 
JTune 1^S4 ; and the salue principles have since 
given effect to in the cas^ of Duncan t\ Porte!* 
18th Dec. 1886. 

ri.t ,m'M oU 

pleaded by the ddfendets— According to the ; 
tiples teid down by the Kbuse of Lords in this 
it is essential to the j^ea of tlie pursuers that 
0hould prove that the DiWctors held oiit P^tersc 
trustvworthy, wh«i thejr "Were a^va^e of his desp< 
circumstances, and, at laii^t, suspected his honesty 
pursuers having no nteaus ofkndwledge either witl 
card to his circumstaneeS^ or conduct as agent 
the pursuers have entir*ly^ failed in the proof of t 
]ioints» while there is real ei^dence that the Bank i 
throughout with perfect honajides. 

Mr Marshall's report was not calculated to lead 
Bank to suspect that Paterson, though * pinclied 

• money,' and debtor to the Bank by bills discoii 
for his own aecommodatjoni was either in despe 
circumstances, or was defrauding his eniployers. ' 
gentleman, when examined as a witness, deponed, *! 

• nothing stated in the report, or what he saiv at 

• time of the inspecti6n> created any suspicion in 

• mind of the insuffieieitey^^xf Paterson ; and he 

• inclined to this from seeiiig:the names of respect 
•. people on bills with which he hii^d been accom 

• dated/ It is not preteiMkA that either the M 
tprs^or any of their ofi|c#rs, were aware of the det 



RT OF 8E88I6K^ 



tl§ 



rston ibr oonoeftltog th© true state '* '*»•'«■*• 
isaeticHuii <»> the deficiency oftheg^iti, . , 

im. BankifScoU 

land* 

dencei of the alle^ioa which ap- , — 
Iice4 the Hou8e of Lords in jnakiog ^^w'^^w^* 
JBaak bad e^ressed surpifise t^t 
d 1mm subscribed the bond. Mr 
>fficial situation in the Bank which 
know the state of btlsdness.at Iha 
; only employed to conduct theii* 
LtQccurr^d ; and be was accordingly 
)n the ui)ex9?cted discovery mada 
der^ to take those Ic^ measures 
es of.tb^ case might require. So 
Fergusoi^ sppke respectiipig any sur- 
p bpnd was sent to Edinburgh^ he 
laye f ppl^n wly of what he had 
If Xprd ,QaUbne$s had been ftUve 
a w^to^ss, b^g evidence as to what 
I4ro yff^A ]^ve bjeeft merely hea^ 
lei^CR Oii . J,^, C^tjipecs^ (who must 
> i^BYf b^i^ pri^^t at the cpnv^sa* 
wbafT^^^ J^ergWQu) ifi b^afs^y ftf 
rtb^ ipa^ipiaisib^ei 
Tjition-ajijp^^^ to the testimony of 

id^pce^nx^doMbt^ stands int A difib* 
1^ her d€^itH>ii lends, to the infe^ 
ir^n^s^^ bei^w^eor her hti^band and 
pjPpiprBed^W re* 

: ^h^ pf^4. ^ the ,Bmk'fl. officers 
SrxaHir^ied^ aignedt but ^ to the period 
«aliisi(uiM4<P had been detected by 
d, npUiing. appears aoore natural* 
k should then have expressel sue- 




f«9 



IXECZSIONS OF THB 



Cautioner. 



*JjJ**;^^' prise, that the pursuers, who resided in Potei 
Smith, Ac. V. neighbourhood — ^who were in the practice of 
Bankof Scou business with him almost daily — -who . frequent 
— -> ceived pecuniary accompiodation from hiin» and 
in every view, the best opportunities of knowin 
real situation, should have become cautioners for 
Even the evidence of Lady Caithness, supposlj 
competent, must be presumed to refer also to a f 
subsequent to the information commui^cated by 
as to the unexpected situation of the agency. ,^ i 
With regard to the s^spicion^ i^Uuded to in J 
letter from Thurso to the secretary of the Bank, 
is no evidence whatever that these were entert 
in any degree by the Directors. 

The allegation, that the letter demanding addit 
cautioq was designed to mislead the pursuers, and 
ceal the real purpose— which, it is alleged, was m* 
the procuring indemnity for losses already sustaint 
the Bank through Paterso^'s irregularities — is a s 
ment without proof, and inconsistent w ith the real 
dence of the case. The Bank considered the orif 
caution inadequate to the extent of business don^ at 
agency. Supposing, latterly, the transactions had 
become more numerous and extensive, still it w 
not follow that the alleged insufficiency of the sa 
ty in this view was a false pretence. In fact, 1 
ever, the business had inqreased ; and there was a 
epect of a farther increase. 

But the extent to which the Bank trusted Pater 
after the additional security was acquired, witli c 
bills, and stamped checks, empowering faim to d 
Upion the Bank in Edinburgh, or their correspoud^ 
in London, for sums many times exceeding tttat 
curity, completely refute the notion that the deferw 
considered Piiteraon as unworthy of trust, wd, on t 



^ it 



imT OF m&^iQst 



Sit 



preindve film when the bond should ^^ ^^^t^- 

Smith, fitc.' fC 

BttikofSeoU 

land. 

ary jpronounced the following inter-* .'— -r 
it sufficiently proved that cireum<» 
wn to the Directors of the Bank of 
nade it not legal for them to aste 
lal security^ prospective and retrod 
terson's agency, merely as if on ae-> 
h of some of his former cautioners^ 
business done at Thurso, without 
mmg, or inducing enquiry by the 
ners regarding his conduct aiitd si^ 
re reduces, decerns, and declares, a$ 
the defenders liable to the pura 
snses of process, in reference to th4 
ermined.' 

; the same time issued the foUowmg 
Ordinary has no idea th&t the ban^ 
|r thing they thought in the least 
res their view of the law Was dift 
expressed in the House of Lordsr, 
Lord Ordinary adopts) and thai 
it plainly tod absolutely the duty 
cautioiiers to make all enquiiy ex 
e bank directors having no duty hi 
pt to ask for caution in any way 



\g relclaimed, th^ Ccfurt, by a m». 
the ihteriocutor. Their Lordships 
to the following effect :-^ 
feril.'-^The present js not an ordt^ 
kifters for future intromissions, but 
St ts W6H AS ftiture; This is a very 




9n 



DBOI^JOKS ,OF;TKD 



N 



Sii4th» &C. r. ^^yin^i *bAt n^hare a pnttf 9Bk» * .bond/: foi 
^ ofScou trangwttoM of a petwm in Ids mxfhjroetit^ wit 
--r— k^pvie^ise of, tiM iiregidac condMl ?ef r tba^.^M 
?«^^<<fWi relation to those transactions, it i& a relevailt en 
ntbe^it this cMduefr^ hueie becil; tmmOmiriiDri 
em^ti^otifin. Wbe qu^tioni tibtersffare^ >hai» isyml 
tlM imisttars Imve estabUafaed rtbe; e^mesdmaiW 
091 the part of the Bank^ whfcb thtyf ougfat to 
baea niade aeguaiated wUhr > >i. -. 

: It is material to obaerre that dM letter dA 
ing ^ -eecurity was written within bQe>«MB 
the date of Mr Marshall's repot*. That lettev^ 
tions the death, of some of the origmcd/ cduti 
88 000' of the reaaons of the dcoaiaBft. But tb 
this might, indeed, be a good reason forrequindi 
cautioners in place of tho^e who were deceased^ 
can hence deduce no reaisoiiifiir requiring a sen 
additional bond of oration. Tlie extenif of bus 
Ixf the Thurso branch is assigned aa aaotiber ned 
but not the kast hifit is givenin the letter that 
terson's salary waa in any degvte to he augmented^ 
the supposed increase of business wbdurh reqwiret 
security to be douUed^ The question then arisen, j 
thi9 letter disclose the whole motives that influe 
the Directors at the- time ?-^^the letter indicating 
thiag.idiich could create inithejmind/ieCithe cautki 
(to whom it is to be presumed the letter y$w sbewi^i 
least reason to belieye tiiat the Bank waa diaMti; 
With Paterscm'a official oondxMt.( ni ; l .' 
' I am not disposed balayigfeeatstBesaion-JfaeA 
report in 160a, considdred^ hy iteelf. ^ Bute dn (kr 
of that report there was suficknt ta draw tb^ ^ 
lant attention of the DirBctdra^-^fparticulaely witli 
gard to &e amount of ' Patersoh'a ownbiU^i ^ 



mr^eEdSiON, 



89B^ 



nfH^ ilpbuBito^ftlid pinched fof^^ ^^ im^ 
itrt0t;>iiofttD^dctdHdBtter8ott'8lMtt8- ° 



v >»( ;r ,v?no!f i:-'.;. 



«*.-. tj!) <;t >: i}t».' 



ClMlltOflffV 



^^6 iiloirtedge df iSie Diri$eCtiw> 
igarA'^ti^ ' Pati^rion'fl MDlrciiitl8tMc(?«C 
LUrdiAi^ttadale ^etie ^ well' inforbed 
had complete Ito^Mige of the dis^. 
!fr; «id it 'Must be pihesiiiiied that 
d iweljr 1#itb the other Directors oa 
lerially aflfeetiiig the Mterests of the 
Johm sftyR' that, previous to^ 1608, 
rson WW in ^embarrassed drimmstan** 
k was diissatisfied with the conduct 
[Xfse he tdok. the Bank's money by 
<drawn^ by> himself, and emf^c^ed it 
te pttF^es* He adds, that some of 
poited t^ withdraw this branch ; but 
' ArmaKkale suggested the propriety 
9 ontfae footing of additional secu-* 
iiy Paterson. 

the principle upon which the Direc- 
itfitehres justified in acting towards 
AtUhough they were ^ssatisfied with 
kf and had put him under restric- 
Mbanded from him additional secu- 
iOil^Xhe says) thai it was the duty 
rs to saikfy themselves as to Pater* 
neei and conduct, and that it was 
dftiie Biiiectota to give them any in« 
leie 8ubjeets^^ 

rtmieatB ia also important as shew* 
madate skb had oompiete kno^edge 







im^mmm fm. 



Vm 



Bssk 

Uod. 



Cmitiw0r» 



SmuMtcnv. the latter had uud^iBtoodth^ t]i^ waSit^^reasjW^ 
^^^asJkiiag additioiiialiS^ . 

film's letter ffrpye^ tlijftt thq , cir^uipfi^^Qces jdUM 
by his inspection of thia agency coiifinned suspiei 
tbat had be^n ent^Qrtainfid» ;mC byhius^'td^iD^ 
f^^P hy fbe Bank's aeciretaFyj witb ireg^rdiftp.Pn 
son's prooeediiigs. 

The testimpny «f I^dy Caithness mid the.i^ 
witnesses ^ to th^ sui^iise ei^j^^ed bjr thetfii 
that the pursuers should hftve svbsqriJ^ : t^e ix^ 
bold to be an important ingredmit of eyi^fOR^ w 1 
qoestion. 

Such being the faets of the c^$^> fm^ }(fcikv^t^ 
principles of justice and eqiiity .whio)i must r^lfi ref 
qnesti(H| of , this sort^ I am o| opinion that tbs ogq^ 
sion of the Lord Ordinary is correct ; while I alsof^ 
with his Lprdship that there wss no mda^fiie p 
pose of concealmeirt on the part of the Bf^nlci vA i 
in the cottrs0 pursued by thew they thought they 
nothing wrong. I give implicit credit to the«ti 
moit of Sir Jolm Sinclafir, that: there wa^ nos}^tel 
tical plan of concealment on the purt of the fi« 
Such conduct would not have been eoii8tructiFe> 1 
direct fraud. I mu^t, however^ completety differ w< 
what Ulnars from Sir John's ^yideqce to. hpMrf be^t 
Directors' opiuiou of their duty in this matter^Jf lUi 
did not communioate inforniatian to th^ eamtio^ 
Ittywwaa it pos^ibkif^r the latter to:hav€^in£onn^ tbti 
selves of Paterson's (Mindu<ct in referent tptthen^iMi 
ID questiim ? The iBauk were bound to have 4i<(dw 
their real «iotiye» in luskuig, purity, in ,teiraif;;p( ^ 
bond. My opinion entirely coinddfs i^ntkrt|ifi4 
niMi whieb a{4)ear to havjs tbeen fnpiKiaedr iff ^ 
IIiiii«e..of LoKdii^whon .. r 



mt ovma^vt 



flHT 






^M^^-JTbut he wn» of « ^iRrrot^^' ^"^^ 

applidtble to the casej as it wa8smfth,&u.^ 
! eautioners in the Hotise of Lords, j^^^'^^*'] 
t in the notes of the Lord Chan- - 
id particularly in the passage whero 
[f I have a servant, who I knew 
I, I was not to be entitled to go 
m, and to indute him to become; 
servant, by stating that I am wil^^ 
my confidence in him, and to re^ 
trust-worthy man.' If the Direc« 
evidence befcMie them that Pater** 
-worthy, and, concealing that fact, 
1 caution only on account of increase 
the death of some of the wiginal 
It have concurred with the Lor4 

hat the business of the agency ha4 
letter requiring additional security 
not the mcrease, but the extent of 
lave we the least reason to believe 
e pretence ? Considering the amount 
by Paterson, and the cash intruste4 
see nothing at all absurd in th^ 
L.d,000 was not sufficient security, 
as no more than sufficient. Besidesi 
ve mercantile speculations made hia 
depended on ; but this was not n 
x> have been stated in the letter iq 
BCulations must have been known ta 
*here is nothing in MarsfaalFs rqiorti^ 
e Bank to think that Paterson was 

■ ■ 1 
regards the Bank^s condinct befere 
ed. If thcfy had any gromad to tfainiii 
had conimitted a fraud, they wer^ 




i9§ 



DfiCISiONS OF THE 



N, 



lis.'. 



CutUiontT* 



H Jan. 1829 . |)ound to have told this to the cautioners/'^ Bui 
Smith, Ac «. ^ot See evidence that they had any suspicions of I 
BmkoifScou g^^n's frauds. I see that his states transmitted I 
Bank shew apparently a great ^um of cosh i 
hands. But the only inference that the Bank 
from this was, that the agent had in his custody 
money than was necessary for the demands oi 
district, and that the surplus ought to be sent t 
other agency. ' I cannot see that the Directors 
any evidence that the cash was not where it wa 
presented to have beei>, or that the circuinstan 
the large accumulation of notes in the ag*ent's b 
at all warranted the inference that he was emplo 
them for his own purposes. 

From the evidence of Sir John Sinclair, it app 
that the moving cause for asking additional seen 
was the extent of Paterson's adventures, and the 
tent of his official business. He indeed says, that it 
known to the Directors that Paterson used for 
private purposes the Bank's money, obtained by 
counting his own bills. But this is very diffu: 
from any thing like dishonesty. I grant that it 
contrary to the original views of the Bank, that 
agent should take discounts to himself, without tl 
previous consent. But still there is nothing abs 
in supposing that the l^ank tacitly allowed Patersoi 
discount bills haying tis own name, provided that 
taking advantage of this permission, he did not 
to an excessive length. The fact of his obtaining 
coniitiodation in this wav must have been iiotori 
in his district ; and, therefore, according to what 
stated in the House of liords, it was unnecessary 
have been communicated to the cautioners. 
' iThat which struck* me most was what is said 
Sim^s Mter aT)out the confirfnation of his own and i 
secretary's su^pidona, But wl at were these his] 



^ 



BT.OPJ5E88JQIi.' 



m 



point I wfw axudoufl to pbtnUi ex| ^^•^♦n- 1^* 

had Ijteen suspected that the cashsmii,&^ 

ilated in the agent's .hands wi^ not2^^<>^Scoi| 

k's chest, is it possible to /iuppoa^ 

t.have been mejitioned ? \, 

Ise ei^pressed by th^ Directors, halj 

iild have signed the bond,, there isr 

lat the expressions alluded to were 

> Sim's letter. It is; quite plain that 

>thing on^ the subject previously. It 

very different thing if surprise had 
len the bond was received. Afte^' 
arson's speculatiops became knpw|i 
nsequence of Sim's inquiries, it wa%J 
ural thpt they should have felt s^r-^ 

possessing the pursuers' means oC 
orward as cautioners for him. 
t the Directors contini^ed to reppse 
rson after requiring additional se* 
^hat extent tl^e Bank in Edinburgh 

f\ 1 can see no other reaspp for ask-* 
tion, than the extent of business of 
, and also Patei^on's extensive mer-; 
s» 

-Though the principle? applicable to ; 
dain and known, yet tihe case is of a 
and neither party have pointed p^t- 
in point. The case, of Thomson r«; 
ancl> and Duncan v. Porterfield^ rpr^ 
irsuers, do not bear uppnit. 
Qstances, it ,is very s^tisjp^tory to 
i of the House of Lordsi and th^ opi«; 
Ion and Redesd^le on the relevaney 
ion, to gu|de us^ It cannp^ how-; 
tat the proof has fallen short of the 




itt 



tiEcmmfs^ovrrmi 



fore^ we ninst careftilfy examine the pro6f, and 



Bftokofiioot. 



it amounts to such a caae that the prlndi^M then 
down do apply, 

1. It cannot be doubted that circomttanoetf it 
known to the partjr asking additional seeuHty, 
he is bound to communicate to the propoMd cai 
tM. if, for example, the additicmal decoiity ha 
been a^ed till after the disoovery made l^ Sim^^ 
&ispeetion of the agency, it is e<mfestoedly quite 
that the Bank would not hare been enticed U 
the security without having p»t thecautkmca^s on 
guard. The question then is, whether there 
fiacts known to the Bank in December 180S, 
they asked the additional Security, tHoA iii Jtme ] 
iRdien they obtained it, of such a nature as Aey 
bound to communicate them to the cautioners, 
have induced inquiry respecting them ? 

3. It is an important eonsideration thfat tte 

tion was demanded, not for a stranger, but for on^ 

was nine years in the Bank's service as agietit, 

who stood At the time debtor to the Baok; a&d 

ihe caution was to cover past a^ wetl as fbtui^< 

hligs. If t]ie Bank demands eautidn ibr a new sen 

there is nothing to explain— ?the eaiftiotters i 

satisfy themselves. But very different is the case vi 

aldditional caution is required for an aeti^^ tigeiiU 

When the caution is to cover the ptesei^t account e^ 

If as future transactions* It is one thing liF he Mte 1 

i^rigular and oweli tiothing, and a verydiffiMtil^li 

if the Bank is dissatisfied "with him, and^ bcitn^ #o 

rtttisfied, some of the Directors hate {nroposed to ri 

the brandi— -if his {Hroeeedingd have beete rectriefei 

if jhebe embttrrassed in his diHmmstances; Md has 

in; ffirsear to* 1b& BnSki and employ Kheir nfttisf 




jirroFenasroir. m 

tspmbsi The fricBifa of IhengeAt ^^^IJlilf* 
I the one<»ise^ biit iiiot im the othesi sint^^tTfr 
the agent's tranfiaotioB9 and aoconixt |^ ■ *f!** 
mot be discovered by the cautionen — 
Bless the JBank afibcd in&rmation^ 
rdinary says, 'induce inquiry.' ThA 
not on a footing of equality. Tfai 
flge of Paterson's eixrharrassments* 
nire cautioners who were ignorant 
whidt, if known, wonld have ^re^ 
interponng tbeiir security. 
i{des which must gidde us in.mtch a 
iefly and emphatically described in 
the House of liords. Is the bond 
ft ' as unduly obtained hf coneeali 
?'*-^und«!*standing by ^ canoealmentf 
le speech of the Lord GfaancellorJ 
if &cts which, with a view^ to the 
stieUf it would ;be for the ad^antag^ 
hat the iiAer was igcorant o£ LA 
e^ #I^ed iao the present case. The 
kterson the letter of the 20th .Deoeio^ 
^additional security, on two grounds^ 
yf/theifcaidionere wece disad; 9Mj^ 
at Thuffsci was jextensire* It is of 
ther^ was no direct comimitiicatioQ 
the cwtioOerst' This^ indeed^ in thtf 
ld«»ot be ; but die Buik^a letter muM 
ii!e been shewn than, aa explaining' 
the demand of addttioiU caniioii. 
idrtaiby^PateBmi wete iahtitiled^ to be^ 
vrertfiiQ: other • teaiiensi abd that all: 

tJMrlw^ J^roia Manha9r& liifcH 
ii^ifil«5R»fi(liftbl«^ihaSan^ 
i.4k5QO. With xespetit to part of thfse> 
report, seems to rest the safetj^ of 




.. .!■ ■ ^mti i ./I I I'll 11 




B9D 



D^qi^Ng OF rilE is 



CMultoher. 



^ w^w*' — ^ Btnk on tb9 security of the bank's agent at 
Bmitfi, ijfci V. *ro8e, by whom, they were discounted ; and as 
itok ot Scot, remainder, he i« his deposition says, that he 1 
suspicion of th^ iiisuflScieiicy of Paterson, and 
f inclined to this from seeing the ndmes of resije 
' people on the bills.' Should not the cautioiien 
beeh informed of the Bank's Tiews on this matt< 
Sim's letter, informing the Bank of the siti 
of the agency^ ipentions that his inspection coui 

• the suspicions which have far some^tinie past h&t 

• tertained.' This letter was written on the 14th- 
and the bond was only dated the 23d of June pi 
ing. In his deposition^ Sim says, that upon ex 
ing the states of the Thurso branch, he was parih 
ly struck with the amount of Bank of Scotland bo 
the agent's hands ; and that the notes in this situ 
had been gradually increasing for some months h 

The evidence of Sir John Sinclair is also ver; 
portant ; and it struck me in the same light as i 
done the Lord Justice-Clerk. 

These are the circumstances upon which I res 
opinion. I do not found at all on the evidence 
regard to the Bank's surprise at the caution ha 
been found. I am doubtful if that evidence be 
peteni; but it is unnecessary to discuss the p 
Neither do I think that the Bank was bound t( 
form the cautioners of the extent of Patersoirs 
eantile deldings. They cotdd inform theniselve 
to this. These are drcmsstances which need 
be divu^ed^ Tbis is wieH e^lained by Lord M 
field, in deciding a case of insurance. \ Thegor 

* ing, principle (his Lordship says) is applicabli 
' all contracts and dealings. Good faith forbids eii 

* party, by coucealiug whftt lie privately knous, 
' draw the otheir into a bargain^ from his ignore 
' of that £act, and believing the contrary. But eit 




IT or SESSION. 



951 



CauHoMT. 



icetitly silent as to grounds open '^^*°' ^^' 

e their judgment upon. / Aliud g^JJJ^., 

«; neque enim id est celare quic-^Hj^®**^°^ 

I quod tti scias, id ignorare, emolu- 

elig eos, quorum interest id scire ;* 

This deffnition of concealment^ re< 

cieDit motives and precise subject 

lU generally hold to make it void* 

! party misled by his ignorance 

sealed ;* Pari on Insurance, 185 { 



n our books in which caution was 
in already ii;! office, and in which 
i^hetber the bond covered arrears ; 
[agistrates of Edinburgh v. Gardi^ 
; but I do not see^ in any of these 
nquired whether th^ state of the 
rplained to the cautipners. In the 
Rerred to, the Cautioner was found 
iwibg by the treasurer of Heript's 
reasoh of asking caution was not 
^l^ty of the treasni*er's proceed- 
idge that he was in arrear, but in 
jwimlB: 

Qjh^ht desirable to conjtinue Pater- 
»Hd sihbuld have bore that he was 
d^totite Ik cpq^iderable airear to 
S • cfiLsd ft very^ different question 
tti^^Uid^r^eiit 

'Tt^Wi:^ lii the Lord Ordinary's 
'tMixis^ of his Lord- 

^^ress^ in bis nW, that the Bank 
trJHifig. 

-IT^eievtilerfc^ had a]ppeafed to 
lit h iha^ done to Lord Glenlee, I 
red also in^the result of his Lord- 
Z 



»bit 



DECmiOm' OF^THS 



n 



CttutiQner. 



J4^jan^^ ship's opiniou. But ray riew of the facts of th( 
Smith, &c«. coincidfng with that taken by the Lord Justice 
Bank of Scot- ^^^ j^^^ Pitmilly, leads me to concur with their 
ships in the judgriaeit of flieLord Ordinary. 

Supposing the bond had not been delivered 
dafe of 8jift% tetter, the Bank undoubtedly 061 
have afterwards taken it without having mai 
commnnicatlbd to the cautioners on the diibjisct < 
letter. Then, at what previous period could ii 
been taken? If the suspicions entertained w 
8pe(.*t to Paterson, and alluded to in his letter, d!i 
at the date of the bond, then rt appears to me t 
difficulty is removed from this case. But of thi 
tmnparing Sim^s letter with his deposition^ ax 
of Marshall, there can be to doubts The pr 
grmind of the suspicions was the larger atcumi 
tf the Bank's notes in Patron's bxonAo-foi 
months before, as appearing from hh slates'; ma 
iottie investigation had taken plaee wkb res] 
the balance thus standing against Mmyf^rtib 
pose of ascertaining whether it was really in the ! 
ehest, the Bank could not with proinriety tai 
bond. This matter ought, at least, to havi 
brought under the view of the cautioners. 
• 1 cannot throw out of view the ^Yidence as 
surprise expressed by the Bank, that Falerso 
found the security required. • :• 

r * The law of the case has been laid down 
House of Lords ; and I think the etideuce comes 
€hat which it ww assun^^ the pursutrs coi 

V .1 Fw^^ (Mqmr^) Sot^Geif. (Jffape) A. Mnrmn, 
Prown. Tlumson and Fermmm, \\\ S. 

^ ' !P^ the Defenders, Jfe^>%^ Odcmun, I Vnlkcr. 
Ikmd9a9ip,yil. &.tAgaMifer * /; CleiL 



OVOar AND MAGISTKATES 
P EDINBUHGH n^r.^ 

1j and PBOFES&ORS of the • 

EOE OF SdINBUBGH. 

ifagistfr^at of JSiUnburgh^ m pn^ 
iverMtyfhave right to vudce 9tatnU-^ 
for the government of ike (hUes^e, 
r studies to be pursued^ €Utd eourse 
t required' for chtainimg degrees^ 
Iber respects; ami the right qf^ i/se 
nfesserSy (the Senatus Academicu^) 
mdregfdatioHs far the College^ i> 
€md under the control ^ the Ala- 
. ' vaod' 

linbargh was founded aad eBdD\«'ed 
i» in coDsequeace of graats from the 

of chttFch lamisi and fandi iriHmg 
i giren to the Town £9r ttie S&tindar* 

bospitate^ and other piouflr' tweR . 
anks ¥L. granted a ^diartar to the 
wering them^ in the moat general 
idemiea and colleges for tihe profea- 
(if'%e artsv^ philoeophy, Geology ^ 

' l^;ptiip8uarice.of the powers tbere- 
^irei^i Uni^^ was founded hy 

1582, Sttdihe' powers mtf pri^l- 
Z3 



t3A# .i««t I : 



8S4 



DECISIONS OP THE^ 



Ni 



CoHegt. 



15 Jan. ma jgg^g jij^jg conferi-ed ott Ifhem w^re ccmfiffiieA as 
Macti^rates larged, along ^\^ other rights granted to the ti 
^f^^J^^Vsticc^ssive tt-6 in 1584, I6O8, anil> 

Air th6se grants were ratified and cohfiMedl 
voiir of the Magistrates by act of Pariiament in 
The college which they had founded ^ad Tl<c6g 
by the King, who, by letter addressed td the Ji 
trates in 1617) directed them, ' to order the^fiMc 

* lege to be called, in all time thereafter, fey the 

* of King James's CoU^e, as ane special Aiarl 

* ane badge of our' favour towards tbe same/ 1 
these charters, as well as ih the parliamentary ra 
tion, the rights of the Magistrates as foundei^ at 
trons^ of the new college were fully recognized. • ' 
is no other crown charter or deed of ercolioli 'i 
vour of the College. The Magistrates had or^ 
the sole power of appointing or remoting the p 
sors (although several regius professordhfps^haVi 
seqiiently been endowed and added to thef^ UniT« 
and, in the commissions which have been ^aiit< 
them since the first appointment of Prindipallb 
in 1588, down to the present time, every proflsssic 
been taken bound to obey the rules and regttli 
made, or to be made, by the Magistrates respi 
the College. 

The Magistrates exercised the power of te 
rules both with respect to fixing fees atid appoi 
new profesisors, and also with respect to the Itti 
regulations and discipline of the IMver^lty, iii ^ 
instances, during the course of the IVth^^fiififd 
centuries. In particular, they regulated the ft 
be taken by the masters' soon afteh the' feiittdatt 
J584. They made an act of coiincll - Wmfei^i*! 
laws of the College iand order bf teaeiati|f'W^ 
and made new laws and rbgulatibii^ hi J7^,^' 
and at different subseq^nit tM^'iii lh& iebtiU^s^'^ 



t t 



JBT OF SBSSIOJf. 



335 



— <^ wbicfa aicts of CQuqycil were re- ^^ J*" i^^^ 
sssors as hindiiig upon th^ni. ivrl^^ 

id, the priucip^l a^d professors, or «^ i^Ji"^Lirgf» 

US, had also maae laMfs and regula- 

5 of Studies apd ptber} matters cun- t^i/%*. 
jernal discipliiie of the, College, ou 
, mostly subsequettt to the year 
ot been disputed nor opposed hy 
id which had bi^eu submitted to by 



of midwifery had been establiftibed 
previous to 1800, when the cuiri- 
tresent professor (Dr James Ha* 
In 1824, the Magistrates, upon 
Hamilton, followed by some corres- 
ussion between the Town-Council 
cademicus, renewed the commission 

a professor * of medicine and mid- 
le diseases of women and children, 
t^ilegeg thereunto belonging ;' end 
tation in 18^5, required the princi- 
f the College to give effect to a reso- 
Dwn-Council had passed, that tliis 
Ided to the curriculum of studies 
indidates for degrees in medicine. 
miicus refused to obey tliis requi- 
he right of the Magistrate^ to nnike 
s for the course of studies to be re- 
tes in the University, 
thereupon raised the present action 
B it found and declared that they, as 
cs of the College, * had the sole and 

pireseribing rules and regulations, 
;i^d st9.ti^te^ for tha 8tu4i€!H to he 
llegi^ afid ,t)^e cquiise of studies for 
;, anid autl^Qpsing and enforcing tji« 



J33 



£>ECISIONS OF tllE 



Id^Jms^tfW. 



M^stmtefl 
of Kdmburgh 
v.. Professors. 



CM*g€. 



* observance df the 66ine : That t^e principal an 
' feasors had xio power, as a distinct anil indep^ 

* body, to make any bye-laws^ rules, or regul 
^ applicable to the general concernss of the C 

* which can be imperative on the Town-Coim 

* patrons and founders, to sanction ; and that m 
^ regulations, law^, or statutes made, or to be 

* by them, are, or can be, of any force or streo 
V they shall not be approved of and f^anctioned 

* pursuers, pr their successors in office, after th 
' and tenor of the foresaid charter and riglitn iii 
'of the pursuers/ The summons proceeded 
mand that a resolution of the professors of S5tti 
ber 1824 ought to be rescinded and recalled ; an 
the act of visitation by the Magistrates in 18231 
be enforced. 

The cause was argu^ in cases, wiih very lot 
numerous productions upon both sides fix^m t 
cords of the Town-Council and yniversity. 

The Lord Ordinary pronounced the fyllowing 
iocutor and note : — * The Lord Ordinary havin 
' sidered the closed record, the revised cases f 
' parties, and whole process. Finds that the pu 

* have right of making regulations or statutes f 

* College of King James, and that in respect 

* studies to be pursued in the College, and cou 

* study for obtaining degrees, as well as in otii 
^ spects : Finds that the Principal and Prores.« 
^ the said College have not right to make regiilc 

* statutes, or laws for the College in contradict 

* the pursuers, or which may not be rescinded 

* i/tHd by the pui-suers ; and decemi^ and declar 

* c^irdin^y: Therefore finds that the resolution < 
^ defenders, dfdjtte 25th October 1824, libelled 
yuUra pire9 of the defendjers, and ought to 1 

* called ; and ordains the defenders to recall the 



J: 



[JRT OF SESSION. 



»87 



LBd fio^ji tbat the order and act of ^J"*"-"^^^' 
26tli October 1825, libelled, and thcM^JSZT 
libelled, are valid laws of the CoU °** i**'^^^^^-'^ 
IS the defenders to give obedience to --— - 
ecenig ; but fiirds that there are hoi ^"^^^ 
r declaring that the defenders Iiave 
ike regulations or statutes fdi- the 
the express sanction of the pursuers, 
alid, provided the pursuers do not 
J, or afterwards rescind or alter the 
hat extent assoilzies the defendai's, 
nds no expences due to either party/ 
pears to the Lord Ordinary that the 
lave claimed and exercised all along; 
stitutiott of the College, the power 
[ing regulations, and that this power 
resisted or denied until the present 
e midwifery class being added to the 
11 attempt is made by the defenders 
ecrulations of one kind, or certain 
?rs ; but the Lord Ordinary cannot 
t grounds for this, nor indeed clearly 
i net ion could be drawn. The exercise 
: making rules by the principal and 
I not c(mtrary to the will of the ma-i 
; inconsistent with the above powers 
ouncil. Under such a state of pos- 
:d Ordinary thinks it would be too 
hat the act of Parliament made in 
allege and its patrons took away this 
Town^Council, or limited their power 
nary patronship — d, e, the mere ma- 
le funds, and iiomination o^ Rrbfes- 
unless it did this, it is har(^ to see 
tiit this power at all. It will be ob- 
fiiiding in favour of the ToMnri-Goun- 



m 



i^l^ij^S5<9i^;r5^]e^^ 



mSo^s ' implies tp^t^i^jr^ titj^pg ihey flw^y ^9 W!i^fi¥^ 

Co«^^ < t9 jin^fey iha^ jthej^ nwy; do or li^^,4of;t^i 
* , qot .opposed by, the JVl^strateSt or ej^n ;WJ 
* . e<9Jide() )by them, is legaL The Xiord OrdinfMp 

* 119 pp|n|on on the competeucy of ike Prf^^ 
^^ Professors intei^iog at all as legislators <m 

* occasions^ whi^e^ for instanoe, ^ey are persopa 
Vterested.* .,» 

The defenders reclaimed^ oxiA pleaded--^TL% 
charters conferred upon the College all the prii 
of an university, in which was included ti^\ t} 
<;onferring degrees ; and that, while they adj 
the right of the magistrates as patrons of tlie C 
^t least except as to the regius professorshJips) 
gulate its patrimonial and civil intere^ts^.yc^ \k 
duty of determining the course of study to be re^ 
preparatory to taking degrees, was a matter whic 
inherent in the rights of an university as sucl 
with which th^ patrons were not entitled to inU 



The Comty on advising the cases with th^ pi 
tions pn both sides» expressed an unanimous op 
that the interlocutor of the Lord Ordinary \ffi8 
and refused the note. The following opini^pif 
delivered. y^ 

hml Gknl^e. — I think the interlocutor fig^t^ 
sitnatiou of thjp College appears to ttie V>:b^JM^ 
of; a mtpiIp^ corporation subordinate to . *hci iWrjH>i 
ff^ ^he city ^nd Town-Cauncil. They h^y^b ,PO;ff 
a g^^eEal>power oS efij^ng bye-towSjiTWhishjWJB. 
ing* provided they are not contraryito thfifPeaotu 
of the Towi^rCouncit^ who ar/e; t|ie^atron^va{l^i 



^'t^^^iWfcffirtia^ atgr^X «tit tfe Ctfllege liad a ^^^*- 

IfPto'fit ttife efalkifte ofetvAytoVe fequiVed ft-tinfi the 

IHUtMl'; 'bi^'iftHt this wad not ^ mattef of i^gula. 

li^ the (latMiis, but that it bdoi^ged to the C6U 

|l|i^litfatttte the power of conferring degreed is not 

iiftrtd on tte univenfity either by the Towii-Coun;. ^ 

dor the Crown, but is inherent in it from iU consti* 

Won as a college, and emerges necessarily from its 

jMiedbti'iDtd an university. The right of conferring 

wU^h not derived from the Town Couifci], bnt 

W^ tdlhe College as a necessary effect of its eirec- 

■i'lBtb an tAiversity. It is a right of conferring a 

■Ntfo'iAltet, te that df M. P., which is recogndxed 

Mtalfttite' world. The erection of a coll^ is, for 

liki]Me,1ii tftia respect, something similar to the crea^ 

nbrf a'p^e^:' The King may create any man a 

H*?'btit, liMii% ifone «o, the privileges of the peer* 

^ioMrdepctid upon the royal grant, but are in^ 

)M4t Id; and neeessarily emerge from, thie status 

vUdi has been created. But, unfortunately, when 

]M eome' to lock at the practice of this univer* 

<l^»it is ii^aite plain, from the docmnents pro^ 

^Md, that, from the date of its foundation to the ^ 

ftaM time^ the Town Council has interfered' in these 

Btttteis, and made regulations for the currii^ulum of 

^]r> i»d ev^ thing eke conneeted with eonf^i4ng 

*^i^M$\ md iSt^ CoQege>ha8 ett along i^co^xed this 

<^%]r Mtemittitig «6 those regulations imp6did by 

^IpMrofuM^^aAA occasionally remonstra^iig' against 

^» ttidigisttingthem ^iMlged ; but it is qAU wh- 

'<M^Aat>Yli8'i4fbpi!ittet(» MemktStig ill the Town 

^cHj iv«tfwyer dibp«itedr ' The^^enatus AcaiemU 



uo 



DBCHBSIN* OF T»B 



fpOi^ 



Magistrates ^^ foF themadi^es^ wliich art9 binding toi 
^frofeM^ ^'^y ^^^ apprdved of, or tinrepeialed by theijiftti 
A8 to the expediency of this state of matterfty 
had any business td ehter into that qnefiftieSn^ 1 
do Qot think it likely to be so inexpedient as tlm 
ders represent. It is notorious that {ormtr 
Universities of Europe assumed great and sou) 
dangerous powers, aiid have oceasionally gkviem: 
much turbulence, under pretence of their prii 
It is not likely, perhaps, that this should agai 
pen; but I do not see any good reason for ind 
the defenders in the fancy they have now ta 
vindicate their independence^ 

Lord Pitmiify. — I must begin by obsesrving 
this case, which is one of very great importanc 
been argued with the greatest ability ooi both 
But when I acknowledge the merit of the arguing] 
tained in the case for the defenders, I must, ;at tb 
time, admit, that the argument in the pursuers 
supported as it is by a great weight of docum 
evidence, has completely convinced me of tbei 
ness of the views which have been taken l^ th( 
Ordinary, who has substantially decided tbi9 < 
ifkvour of the pursuers, without going the^l Icsi 
fihe summons. The summons concludes, first 
the pursuers, * as patrons and founders of tl^ C 
^ of Edinburgh, have the sole and ^cliu^ive 
^ and privilege of prescribing rules iai|d\vegH}j 
^ and making laws and statutes/ )&c.;^Eid;th 
iihe next page, it goes on to say, * that 4¥» ml 
•^ gulations, laws, or statutes, made by, 0^ Firj 

< ud Professors of the CoUege> shi41,be,of a^i 
^ or strength, if they shall aot k»j ^f^rj^yed oijffa4 
'^ tioned by the pttnuers^ orrth^ir im9ce«wm ip^ 

< after ^ the i»nn and ijteQor nof (be. £cnr9$iii^ ^9 



^ of Edinburgh 
^ , », Professo*- 

Jlaprtntes vagr. ^nefc eitber disfiiiptly disapprove < — . 



itliegr aidb not eptitkd to £eGall,.but th^t tli^y. f'^^^'^f^ 

»«]aberaleB aad r^egulations wJ^lch will be^^ocw 

» tfiHit.objecte4 to^ or reeled bf tbe Mag^rsji^ 

: tfaitf k llie fiir result of the eflmbined effect of 

r» acts «f PfiriiameBt, and all the other ^vn 

i^podncod in this preeeBs. We nui^t <^0B9ider the 

is no audi (Jiing known in Scotland m^ 
eoMtitution for aU the GoUege9» On the coii-^ 
we find that every bne of ihem stands on a dif** 
footing froHi the others. Qur books of reports 
bH 4d oatM fimh the different CoU^es ; and» on 
into the^e.diffexwit reportSf it is ^uite^ai^ 
all thfe Colieges are on a diffei*ent footing from 
Mber ; and nothing can be more clear than tha| 
jibf^amaUdifiteent frain the footing on which the 
fttcgeof Edinburgh rests. 

"^itb tegard to tiie charters and acts of Parliapieati 
^k question is not as to the nature and ej;;tent qf 
frights gmntedy but the persons to whom thesp 
W^ts sre grante4r -it is not pecessary to consider wha^ 
tki'mtare of these rights and privileges are ; it is of 
iM importance to consider who are the persons t^ 
^l^m ti»e rights are granted. 
*^% flis Original diarter in Queen MaryVi timei whidi 
%«glMscA in tiie aubee^pient charter^ the. ffcmt m 
]|b«a 'p^nedilectla nostiis preposito,. baUivis« cp|^ 
^Wijfoky \et comuHfiBitati ^ti noatri burgi de Edin*. 
^'lMr|^' No#/ ^Is grtat is in espresa words, conr 
^nM by> the subM^mht cbartar by King Jasnes. . 
' 1%etl Mmes^e aet<0f ParUamentisi l6ai»^hiic^I 
ttiMkii^ p^mmf de«r taid a^litit . rl Hkmk UfiB jm« 



34S 



DECISIONS OF TitE 



N 



*ft ^^J^^* possible to^. twist tliat act into a grai^t agaioi 
jiatrans-r^it waa ^ grant directly in their £|vor. 




strate^ 

dinburgh these OTants are riven to the Patrons as well aj 

r. Professors. ^ ^ , , ^ , , . , 

^ fefisora would afford a good argument m the ni 

Ci^^e^e. of the Paftronsi supporting the rights of the C 
against invaders ; but the defenders cannot i 
agahist the PMroAs, the rights being granted to 
If the rights ^ave been so given to the Magis 
of Edinburgh^ the next question is, whether 
rights have ever been given away, or lost ? I d 
think it is alleged that these rights were ever 
away ; and I do not see a single instance in wbic 
rigbft^of the Magistrates have been disputed, 
true there are many cases in which the patro 
not interfere. This is quite natural* They i 
leave the Professors to make internal reguta^ 
without interfering with these, if they did not c 
prbve of thtmi. But they have interfered in 
ea^eSt In 1703, they interfered with regard t 
gradiiiation of the students in Mr Scott's class. 
that case the Senatus did not dispute the right oi 
Magistrates to interft^re. Indeed, they adsaitted 
right to do so ; for, instead of objecting to their r 
they {Nresented a humble remonstrance to the Ti 
Coutieil, and they obtained an alteration on the me 
but they thereby acknowledged the right of die 
gistrates. . 

The same is the case in 1734 with, » regard tc 
Greek f^lass, which is still more in point*. . The dis 
there was fWJth regard to th^ degi)^^ of master of 
BBiibe pre^nt is with regard tothe dc^as of dc 
oC medidficy- In that case alsor t^e rigM^, of the 
giatrat^l^ interfere was notjdifpi^ ; Jii<!)^4, it 
admjAtf^. ^ X <»mu]|tr see any rdi^nciliQa, )^(^^a i 
ease aad^t)^ pi?eaeat. I cajmoft.pqe \fj|yjp..fijf the 
t»ns baicight^Q i.nter|ere,^Hh. r*«^^ 



// 




rfilrtlerrf rfrtsij-thfey »ho*ld *« allwliliwriglifc?*o(»^^»*f W^: 
\iKSae wMi i^rd to tfe[e ^^f^iof^dwiMJef ^^xudsMM^I^^fc^ p 

^'WNf^feg^nl tti the itiedicftl «ttrii<!idil]ri^iilt«i]|Mif» 

iitet^theCtiRege of Pbyslcimd V and itmayi 
tnie that, for a long* tifne, tire MagHfthftto ofi 
may not bave ii i te f fe red ; but tbat eatmiot 
ilwajrtbe right of the Patrons to ob|«et to^the. 
piirdued by the Setiatoa, if thejr s^all think 
to do 60. They now wish to add another, aud 
iric a very important class to the medical eutrjouH 
If it Ibad been the reverse, I migfathiifrehad 
jealousy of the conduct of tibe Magistlratesi if 
mfhai proposed to restrict the medical claas^ff. Biul 
iitt I^ that they iidsh to add a very important 
to the curriculum, I can have no jealousy cl 
iittrelercisftig tHeir right of interference, I tbiaki 
Miftr case, the Magistrates have acted most jndl- 
iftttslf , and have done so with the greatest propriet)^ 
iKmrAi' thift Prafbssors. I cafanot wonder iimb the 
|iMei*^» on the one hand, who are patrons of th€^ 
MimSty, and so designed in die <ddest charters, atad 
hint dways watdied over the interests of the UniVj^i 
%%iA tare, and from a wish to prmnotei leara^ia^, 
Mdimt wflliiigly yield this right of admittisiMtien 
»d eontrol, if it belongs to them ; nor, ou the other, \ 
kUi Aiftthedefender^sbould think themselves fitt^Mo 
Mfe stieh ^ints, and should even think iheifiteresta' 
Mi%oiK>hrof thili Univer^ atstake^ andstrennouidy' 
cMb'^pauir td^artaaeipafe tbdnselvee. 'We oaUAbty 
^^1 Vif ^tded hjr viewsT of expediency, but tnusk> 
MleiieAwdfiftg ^^iii^tH'i and'I am gidd ^f it^f fovi 

tt^Uc^bdto^d^ H^hdRtm^'tixe greatesCi aMtouMgeiT' 
<if MUftitt^ hriifffe^ jEikt^aiifejrs iM^n thems»)$res' 4c^riled' 



S4« 



nfiGKJOyS OF '11IE„ 



I 



u jm. i9»4 uji^,^ rpjj^ jmniuefB car have no o\^§^ 1^^ t 
Aiagistmtes nwte the intereats^ of the GoUege ; mi th^ h^ 
^^^PweSwm? ^'^J^* ^^^ ^^* *^ ^^^® access to the best advk 

Again, we must keep in miuAt th^t iq all tht 

cmp^ missions to the Professors, they are takeH: bei 
he snligect to tlie authority of, and to obey th^ ] 
tions laid down by, the Magistrates. This atl 
the attention of a rery eminent Professor; 1 
did not think it prudent to attempt toget t|ie. 
of it. Therefore, upon the whole, I have coraie 
decided opinion* that the interlocutor of the La 
dinary, in all its points, is quite ri^t. 

Eord AUoway.^^l hlive read over this ca« 
every attention in my power^ and had jaMde 
BOtes^ with which I do not consider it nec^ 
trouble your liDcdsbipB at present. It w^ i? 
Ue to read this ease without a great deal o( in 
The general conclusion to which I hi^tre aria 
this> that no lawyer can entertain any doubt oi 
iase in point of lawi 

I must agree with the opiuion e^ipre^aed. by 
Glenlee, that men of learning Iiave not been a 
the best judges for directing the course of uni^ 
•tody. In the history of the universities of Gi 
jrtiii find that, at different periods, they hare hei 
greatest literary tyrants in the world. I cannot 
saying that the defenders, I think, would hsi^ 
well, before agitating this question, to haye tab 
advice of some of the learned gentlemen ait tke.b 
The case has been remarkably well argued eii 
sides; but I confess I never read » paper i 
^more comj^etely satisfied my mind^ aUd tww^ 
^doubt^ (for I did entertain .doubts at rfuie tiwt) 
the case for the pursuers. The only questioo^r 
whom wtere the powers and pmj|^e9^lt|l^^'^^ 
were granted exclusiirely \qA\^ }if^tmW^ \ 



flttfl/freih the vcrjr iirtt eomtttiesion graatol i*^*n.iili» 
piiwckci r RdU^lc, to the* last cdminission Ranted MagistfafeM 
llftflrM^^^ri erery one of theiti ore taken bouBd to jf^^^^, 

tiMf laws and regulations httposed on tJiera by the 

€oundL ^^^^^ 

ai^gumettt for the defenders on the act l62l 
to me most singular. The act was passed for 
|Mrpote of confirming the rights of the Town. Yet 
'^tfefeAders maintain that it Actually deprived the 
of the rights which had formerly been granted 
'ttett. This will not do. No doubt, m a Unirer* 
\ they may have had right to confer degrees ; as 
ity they were entitled to do so ; and they 
a tlniverslty to the fullest extent ; but Were not 
powers derived from the persons to whom the 
hsd delegated its powers? and although, as a 
iiSy, they may have power to confer degrees^ 
does not afibct the right of the patrotis to say 
eout^e of study may be necessdfy before thes^e 
A|;rees can be conferred. It is needless to go through 
le evidence in this case. From the case of Pro^ 
RbUock to the last professor, the terms of the 
ions are the same. 
•''^fflfere ai« several other points which I had noted, 
4lH it is unnecessary to Enlarge on these. I think the 
^iMM Ordinary's interlocutor right, so far as it goes. 
4Ntoy flHng'Was done which was eontrary to. the laws 
1##re Ilfnd, t^en this Court might interfere ; but there 
k -lMlbi]% of th^itt kind in this case. Let the Profes- 
4M g|0' MT'tfnd make r^ulations; and so long as 
^iUm are* Act dppoaed or objected to by the Patrons, 
Viejrilin be ^ffectiial ; but tlie right of the pursuen 
Hi ihte tfcfe , When they choose to do so, appears bqroiid 
**b«?' •^"'' • 

l^loftf ^ltMf^68^ with all your Lordships 

tf «^ the^ftttASntitift ctf >tlds €<rilege. The defenders 



S:I6 



DE«fSIONa»QK'THE 



*^J^^;^;^d«il^ can I 

^rfunieLmtea of sWOTed* ^s the ifoiaiilttrs a£. tibis GoUegBe. But wh* 
prafi"^^^ * ^'^^^ ^'^ ^^^^ nuniaiious docttmeiits^ it is imposs 
-^ etttertftln the i^hadow' of a doubt» diat th^y wt 
c^^i^m. ftjttjuiers of this UniTersitf . After the objeet is pi 
they^ get a grant of land, &c. ; but that was ft 
express purpose of eaaifling them to joarrjr their 
into execution. I agree in tlie opinkm express 
Lord Pitmilly, that there is no such thing as a g 
constitution that applies to all the universi 
Sootland. There is n<^hing^ more different thra 
cpQstitutions. If the learned Professors wiU 
into the constitution of other Collies, they wi 
that they are in every respect different^ and e 
xoBXiY different powers from the present. Ti 
press object of all the grants in the chartew ^ 
cQaUe ^e Magistrates to found a College ;ail<l 
his Majesty was so much pleased with wha 
passed under his own eye, that he gives the C 
his own name, and confers upon it all the pri\ 
belonging to any free College. Tfa^s is jus|; 
might have been expected. But the plea of the d 
ei*p would go the length of putting the eonstittrt 
the College into the hands of the bursars and stUt 
for the act of Parliament expressly mentions tb{ 
well as the rectors and regents. Therefore, I 
w;th all your Lordships ad to the cpustitiqiticu^ c 

Coll^^e.^ < ^! 

. All, then, that remains, seeing that all the P 
sors were, froin, the fir»t,. tak^ b^q^.t^. yifk 
dience to the inju^tions and regulations of the 1 
pouncil, is to inquire, whether there has be«] 
alteration in the circumstaacts. The commissioi 
all in the same terms, and continue so to the pi 
day; and then tihe Magistrates have uaifo 
whenever Uiey thought proper, or considered it i 



|(|iilil|ii(4i>pqteii.;Th^yhavej«rtoimtr^^ -^— - 

iu> altoratioil ; but the^ tnatter^ctf : i^bt, wasi ^ 
i|i!oilgl^ta>i899ic^il^'^^^^ bf tlifl ^ 
jTll^ poiieer is gi»Bi(^d solely ta the Magte* 
i|^..ti|i8 c^^ecti j^ stands on a very 
fotting from ail the rest q£ the Universities. 
mh9i» tb« AX^istraV^ chose to mtarfetsssr 
tPillp-Wrhcusi^yei: been disputed ; satber« - 
ii;^g^ (1^ ckcii»3tanj:e9» frj^ 
i^^^llffiwtWS'l^.irig^ of the. Ms^trsrtes. ^ ; 
tl)fiiM^dj:OJQ4in^y^b^^^^ a^vjer^. prcy^sr 
jl^osaors jniay^^niake rafe^^^vand siiolKraies 
tf v^hp}C«we*PQt abji^^^ ^ 

9atvott»» but still all such rules are siil^et.to : 
!W>4f the Magistrates. I think this is in per^ ; 
iritji tite usag^,* . . ,. .f?- = 

y^'it^HCenzi^. ' Act. Id^^'^ gf /Vir. (Mmcrkw) 



' TJ 

\ 'Wfflii'Tinrjt'rrTrrr-^ — >r" ; ■ ; ■ -.. v — *'* -^'^'^ ^ • '^ *• > 

f ^ azgmn^t consiSted cMefl jr of eonunents on the rojul jpranU 
)fkrdkofAll'lIi«litraMi '{ •. 



•» »i o .^ 



84S 



JM0mGlf»<OWffJH1& N 



. ! f • ' 






No. XLVUh 



l^tlmfwryU 



BEVEBIDQB 
WILSON. 



-' j\ 




Bight in $EcimiTY.— BA»«&tnpT.r-MSB«u* 
TION.P— fltoAT. 54 Geo. III. c- lS7.r^An^ 
creditor^ with a power cfsaie in his bofHikiBi 
to exercise H by hinging the kmdatomie^ M 
standing a sequestraUan ^the deM^rV e^tfk 
that the trustee has exposed the lands Jbrsak 
the bankrupt statute^ the latter net hamngfi 
purchaser. » .^^ 

BEVEEiDGBwat Statutory tnistesa iipoti tikena 
l^ratod estate of Heiuy Bordper^ Imw^n ^<^ in 
fennline. Bardner, iu odditiim t0 bit^ tfitim 
perty, was possessed of. ttie eMatf o^ Wesit l| 
over which, previous to his baiildni^y^ hi 
granted heritable securities to a considisraMe di 
Of these Mr Wilson bdd three bg|ii%«iom 
t^ U9000, whi«b wofff pi«£v«lWk^ IU> llUi^^^ 
s^curHies. After whicfa, a thifdpsarky huld a se 
fiwr L,2Q0a ThereaAer, Wf Wilson :bad;ia ^ 
bon4 for L.SOOO. more. And. j^i^^ Thi^& 
Scotland m^i^ real creditor^! p^i^poned^ toi;« 
others, upon the estate for I«.40Qa AiliMr Ifii 
bond?, upon which he ym^^feiti, , conjsmbmdj^ 
with pow^.of ^. By lAts^^vfitrihft WAS «ktte 

• at any tiipe jrfte pr the tt«9i ^if Pi^ 

* BUY atjx^rji^^ 



Jr ^ /■ 



' sBauI dispove of the lands/ kt. The others were ^1^^^^^- 
Mailed in the more ordhiary form, requiring six seTeridge r. 
JMiki prano^M 4o tfate^ktotdk*,- after which the^^^^^ 
mSta aii4 his assigiieee. Sic were nspowered * to Rightin secu^ 
' Mikmsfnek oF the foresaid knds; !lte.iekhl>r by ^^^^^^ 
' p^ map or priyate sale, as they shall incline.' sequenraium. 

nn *««» >j -■••*%. w tot 54 Geo, 

The estate of BaiAoer wiia alequeetrated m De-/f/.#. iS7. 
1887 ; and, in January following, Mr Beve* 
was elected his trustee. He soon afterwards 
Mx Wilson with ft state of the real property, 
ikf *lhe above mentioned seciiriii^, from 
It* appeaitod that the lands of West SaHne 
"Mdaed, iiy lepoi^of men of skltl, at about 
( hit tlml ihe {Mrtteht t^mUi was insufficient 
tttoiatcrait ct Mr Wilsim's debt, and of the 
leetirity Aht L^deOO, which was i>refef able to 
lndHiC' iir Wilson irp<^ this intimated by 
to the trustee that it was his (Mr Wilson's) 
interest^ in order to secure his last debt, to 
y^^ SMle dt a» esble, Either through th^ 
of4h0tMtet^ or in Virtoe of the powers of 
ledrfa Ms bonds ; but added, that he was 
t» slfew Ato ant L.9Q0O to remain on the 
provided the trustee could negodate with the 
«f SeeOmd to tdce an assignation to the bond 
iMOI^lasl^leAt by Mf Wilson, and postponed to 
mManteiiiAg ieeoHty feir tike same sum. ' He iii 
iNMleHet' AtieSmed fo attend a meeting of the 
WMhrfeMastraitil^ f^ trustee, upon the ground' 
•WWhg^ni j^ekMHal eiteditor, he had no ttglrt M 
^^'UdlfMMllfMtftbiftt he reserved fiill powei* t^T 
*J»i« el^Ui^>>^i«ittJof ii«e contained in his bbtid^; 
I ■MUmhaiUiiii Hie^ s^^uesCration, or any resolutlbw:' 
**«ilte«»fettigJ*f'fe<^tiw^ ^• 

^l^^ikgoM^ tflsljl^ion df ifie V&ol^'pr^- 

^SeoQiBd, was afterwards commenced, but failed of 
AaS 



MO 



mtcmiOfNii^oTfWwa 



rily. 
Bankrupt 
Sequestration, 
Stat. 54 Geo, 
III, a, 137. 



i7 Jan. wt9. ^0*ect ; ^d a meeting df ^4ltd c^sditOTs wifi ^eh 
Be^Iwid^* ihe idafte'^ <the above -^entioBitdletttar^ii^ 
Wilson^ irtously ' resalTed, thtat the trustee skcmld tl^ 
Right in seauAhe whoIe ^heffkabto estate ^ the iMiiklrttpt bjn 
TOluntdry stfle. ^ ' t • • ^ 

The laddi^ of Welt Salkie^iMieaeceHduigly-e 
by the trustee^ firsts at L.lMeOi and idBterwi 
Ir.l7»500» and * L.ITT.OOO^; ' bht bo? faidd«i^ epj 
They w^re afterw^irds agasn aditek*tifled at the t 
upset price of Lil6>000; UtWiinetiin thi in« 
gave the n^essarjf prefiKmitioQi sted -^ve tai 
.adrertisemetit of Jii» intcftition to expose the If 
terms of the elatise of ^e la ihis< bondi. ' ? ^ < 
. The trustee thereiipim pifeseated ^ fciii of ^« 
sioD^ and applied for an^ interdict agamdt'ihi 
sure. The Lor4 OrdiHarjr trefiised &e Mil; and 
to his interlocutor the rfoUowittg fi^ .--^^-^ Tlk 

* Ordinary sees' nothing in thd bankrupt Bttitute 
r can lessen ortake away) thcf righls competent 
.' h^tai>le creditor^ or pt«veiA htniy fwhere hi 

* gives him' a power 4>f sale, from ^xetrci^ing tki 
/when he co&ceives it' foi^liis intclrait/MTte^tl 
reclaimed; and the qfMSi^oB lraaiargu0d inci 

Whichr-r • ' * . . ♦ •«! i i'l 't 



, The compiaiucr j»2ea^3Ji>rfU4. The gena^ 
iof jl^w do not sanctioD ithenextn^a4M2dali aale pp 
.by the .respondent.: Originally, an iieriAsAletffi 
might adjudge, and eater ia^ poaseajMOU o£l)iad 
f»state, of which he would acquire .tkarpjoopeitiF. 
expiry of the legal ; but the^cQmmon k^iafiord 
1^0 power of 9ale prievious tq th^t > term« Tkei 
feb?, statutes I6ai> c. ]:7#a«d 1600, n.' 20, weraq 
for tbe pm;pose .of. eilabUng)Jiti,ktcilahl&iCMK] 
puil^V^e aii.aption ofisale^i^aiid tiniailofoMa4»^ 
^*ial 6aler<^ Jiia(4e)i!ki(ri8ieataAe^: 1^^ 
was bankrupt. This sale being conducted uud 



•£ ibr£k)urt <rf. Be8wk«)j,illi«t JAterestof aU *lJw-|WW- 
crediiiMM itac aeooiwd bp the.rn}«s and prac-B«vmM^w 
Couit. Tie da«m »£ oateMMttrted in the ^''"^»- ' 
ftr Ike pui^Dse of fiwddin^ the oleddtor to bring i^i* ««»■ 
|i^ estate to sale without the authoritygltfie Court, b^;*,^ 
iT^noclem invention ; aqdji« .vftlj<Uty, which **«^5''«^"»- 

<rf Biwfn f. atorie, 11th July. 1790 ("ilfor. 

TJbat, bow^veac, wm aque^tioDL in wliich no 

gfitiiird parties appearedifiadtlfteir was.tbere 

teotapplejr of tbe priipmtprj and tha.Court moait 

-fimtmmii the eiauae in a jquestion oiUy with 

Bat it ia a. y^ry different 4ro;)sid6;atian whether 

idaBaeaa^ be auatain^in aqutestion with credi- 

ta:*tba ^tifoet of superseditig the legal process, 

ja Mi»iietan|.ta theaa uadtv: the atatute, whidi» 

itakes the efrtfite^way from the. debtor, and 

Iha^proj^ftr^ of it ia them and their trustee. 

• atipttJatiiHi bacomea in that case a pmcfum 

i^g9tki^^ ia j^funly i9fffectiial against third 

itim:dau9e cf sale ia.ralid.as a mandate c^ the 

V UfKttiwhicli.foaftif^ alone it can be sua- 

it must fall by his death or supervening in- 

, such as haakruptey, which deprives him of 

Bmmt^lfiiBeia^o^hU estate^ The Court haa always 
ijea)ouat>fifie(w^ra of sak and kritancies in clauses 
IWi p iLmiHiw t Bapd i»ifita^>7th March 1771 (Mot, 

^IMD^^ whatemr ma^ be the effh!t 

]|feKi^*i4MU)0a4^^ of saleiby 

I HfiifMe i!ssl ts^e^tor .is exalted; by tbie> seqoedtra:^ 
^«tatete (*t Oed^ IIL «. 187) by the 42d^^edtioir of 
WMMo^^^^ Ihe 

llitsitiMa^mA<eri#|e buadwirf. the real a^curitieat 



m 



m&smi»^^m!&^ 



l^ 



H 






^♦2i;)lj*^ Kbfefetedti 4^;irtiti«fi^, -^rtfaoi&f fl»»f fOhiMiii a 

Wilson^ ' but are iWtJiW in i»i^» CfoJta. SI.7; «letf #. « 
iii«tartiil9th Feb. 1811. "Hie creditar having a po\i 
[ sale; itiust, exnecemtatei be ih^a i!oiidkiMi t^ \ 
^'I^i*^' valid tltte to the lands; for the TaliditV of tke til 
111.$. iw!. ffeiid^ solely hpon tli6 authority aintf r^ht 4>fmi( 
tor to fconVey, whieh he hoMd by hii hifeftrifeiit 
*(idtrfiiie thtit -the ^pov^eif of sale is a midnAftt^ ^ 3 
fells by the bankruptcy 6f the pMprifetor fe ittaj 
We to real rights; The «?fecBtor retSJnS hW ^] 
merely becaitee he id Infeft in iti j . v /) 

' By the sequestration statute, «&tli sect, ft feftt©' 
tliat the trustee only Acquires the right aiWf fbtt* 
ihe^ei^iate whifh T^as Ifenteerty in the banKnH^ 
t|\ibje6t to all the Kmltatfons arid i*estr!ctirtii ^^ 
'which he held it. He, thereftre, tan aWacfc'fi* 
bifttheirev^rslonriry right, subject to the ^olrtt c 
"vi^hlch had been previously itonvfey^ tothereit}^ 
tor. The exception in ih6 42d sect, of th^^ dtiMt 
'only applicable to real creditors having ' no pb* 
Saife in theii- bonds, and ivho, thetiefdre,' ate un* 
iiec^ssity bf resorting to ajudieialsiale in order! 
Aer their securities available ; and the statute, t 
fare, v^ery ^rbperfy interferes to prei^eirf t^ 
cesses of ;judicial sale from proceediti^ at t*e 
tlme^ but it does not take^away wor toiii6h''the' 
'6f an heritable creditor having tMfwfer'tb bH«j 
'estate to voluntary side, iw^ithoiit resortifi^ td 
ptbceedih^^. 'Iftifess,' therefore, it-is to be maibfc 
thtit a dause of 'sdle in a di^posilibnr -fif secWrftJ^ 
ie^l,' the dod;i4rie of pactum cmtrd lege^ ^WM 
piy ; M*tarie r. R6bet*3on,j 29th Nov: lIRftS:' IW 
the ti-ttsitee hsks evid^tifly ilo fai^liftetiiSt 16^* 
'sftle by th^ teal' cridhot Irf ihi^*tM»ifc^t> iwtete 
m's (twri ittetti Jts b*Ye dheWnHhatihe^ eifthteti'fl 



llitrwdi tfafU their are {Wiid mffbe ^rioMl^ era4«^3«^lid»illa 
|iM»i]iaTe.ii#Bitxsmtlkjttetir .. yWii«o»u /^ 



•Mioftlkeintevloeutor. Tlus » not a qii^stiou as^^^tjl^^^ 

||tt» tuMdity of a bond witli a powevof sil^; bllt^i*i//.« ia7* 

m the eottrse of a s^uestrMicm, attd- inr^Ivdft^ 

Itglit e€ ^be credkeir in euch-a^boiMl to iatennipfe' 

in Hie coarse of Jbis {HroeeediBgS'to bnii^ 

kmkrept estate to a sale. By the 4Sd seetion 4d 

illttttkrapt aet, an heritaMe creditor is not'entitled^ 

eTe» to a judicial satei if the tmstee hlive 

J begun to take etc^ to bring the estete U>f^ 

iale, or if the creditors have resdlved that be 

dispose of it by voluntary srie. This is a rery 

c<»]fiideratian in the present case. Th$ 

iaof Beeok i^. Brown's Trustee, 8th Feb. ISWi, re^ 

Avtttf interest* that the trustee could hava to inteiv 

ftnoBiproperly ; because there we found that he was 

tMenfitled to cetomiission to a sale out of the price, so 

ffeii it was apidied to pay the heritable debts* We 

MNXHid to ifiterpret the bankrupt act liberally^ and 

li-Ihe most beneficial manner for all concerned. I 

tme&fteObitjk that the respondent cannot now inter^^ 

tll^^rith the iraatee^s- management, by fordng on a 

l#eC the«atat6 under the dause of his band, since 

fchppnm that4he trustee has already taken steps 'to 

iMpf it^to sale under the statute. 

)4ml^JSl6masf.'^l had great doubts of thisunterlo* 

dMr vkm It' was first brought before ua ; and they^ 

i|lisk'fwism4l^the.arguflient>inthecaaes« -Therfi 

Msime Girtomitaaeeii rcspectiftig the powers iifthi^ 

tiMe^K^ch <>a<<e^iM>9tr iinyej^taat. By the aw^moa 

l«Mr,4iri^ tiia,p|K^flkov,nor fAy-^ h«altable'esedit<Mr» 

^'tt fome^ -of .Sfi¥ in .bis t boiadi tan discharge the 



IMW. 



mammi9c0r:(m» 



N( 



Bevcri^* deB^d^ Saftftto^^^ a purchast 

^jlT^l^tlie e«t^(e d^&ckvg^ of Hm, deists. This wai^ 

»BWf;^«t?i?j]telP .iar»te4 h^itflH^ ^ecuaritiefi o^-ei 
fHtlM^i^f ^ grafter 9pi^^ uelibej 

]^rwili6|pr; hiff^Bdf xior 097 pr€^?rtJ>)ejqReditor coul 
qi|C^ia<$9t9^i3i;oiMrfy a suffidwt t^^e ^;a purchase 
m, to ^ytfflyiipil^ipr fjbi€ estate of, .thjo qt^er debts ; 
¥W«i QiP% W4 Cfinrip, V, ,F1WW«^ 19* Feb. 1 
^a,J^.^.: TlwA|8ds^iO(naf tl|& bankrup 
x^iD^cs J^i« d^eet q£ ppwer |n tlfiie ci^ of a sec 
teation^and jpives thie tniateie poiwfer to grant a 1 
titJf to tJ^e^t^^ to f purd^as^y disbjoirdened of aL 
borlt^U^ di?bt§. I» tlier^o|re» da nflb Sise bow any 
bu^ ^le ^jfus^./qm adl t^i^ estaij^in a beneficial i 
ifftr fpr fdl^foppt^f^^fed,; .ai»4 ^ Ip^T^ t^® ^i^ ^^^^ 
];:aw JUfl^fJiiP) both af.,tha,g!q^sral questloit of 
l||]4 of the 494 s^QH of the ji^nki^i^ act, as to 
flgl^t of the pT^ijtor to: interfi^sr^ with the trusU 
Jlija jKToeee^iBge to hnngthfi.^Ut^to sal^. 
, jLoftl Glv^l^ was of Adiff^^r^pt Qi^pn. — No do 
if f^Cw^ were fiatw&9d t^t the >liiwritable cred 

fl^<^|h# low Wd ii\j|iiy of % of))^ <areditorB, 
not in honaJ4e for his qw^ a^^uidj^^ ve might m 
i^,ifi\!f^^ea%}m^ j^utthatis 

iiip.pm}fi^f!f^ ^ii^u^j^'s in 

pip(f^n>of ^hphai|kyi|j>t.afCt,,,l^^^ is entitle* 
|:e9p ha^ the estate from sale, at^^^^ertaiaor v 
m^aO^f^lm^ tJie i^erAt?4>l*.iPW4it«rs, from s< 
Il igl Blift Pl^^qi^ a higher pi 

afterwards, which might leave some balance to be 



Mkltfadptei i£''1aati ih^ aigaiamA it- ^ betilpftii t^^, «| ««. 
Hftiii^nfet ^Ofliete tliat life Aufi no longer be^Qb*^ ^mmoIST 

i^ t a |ifai ?a; bid; siidi an |ttfot)irchB(iim ^I^mAI 
liWi^ lie -A' moBt extra^id&ittjr ifezftensloii «f fll«i 
lil& Ilifr^jUseieiiioitsipplies miljr tomiaMilialy 
IMbMe laMfte^ wio bM no power of «ale inHitf 
tPtty'ftiiiiiriiohai AotHlMr ititeiiB of rendering b^ 
dUi%eieeblid to neoy^r i^aynient, and oC bringing 
(ifelillil'loafle^ ^Doept by brhi^ 
fittrGNflrtof Sesltfoh; aAd^ eveii in iimt tatb, aft 
liildiir jt Ithe aCatote of interfioring w^ fheT^&lfe 
inttitiUe^^reditota^ fliikt St only prafaibfts hinif fit)nk 
ttngioiB cane -Ae traate^ shall have altelidf b^nn 
HfHSoffbe eatkbe to a jbdieial 6ale under the fl^ue» 
lMgoo,driifailbidil^ belA the course of brfai^ik^ 
^to- a tolaUfcary soU in pormumee 6f a Msolntton 
^ fte crMitirs. Ptit the ease la quite dilleilttit 
Vtere iibe beHtiAle fer^fitor has a pouter bf aide in 
Ittbmid^ anaiH nndeir ho necearity of byiaging a prtk 
in d tde in^prditt* to Irender it ^thftxml. The only 
^tiitiaA motive of the provHBon fh finfe stalfute 
^tofile¥s]i| m donUe^fireeeBS of sale; at the inataii6e 
tf^MtnM* aifd an 1^^ from being 

Wdediw'in^ Court. «t 'ti& same time*-^ prdcaedbig 
^MtttMdettAy wraUl be attended wHft nb faeneSt 

ibilW« ihrMaa^of tiie atttute, toapplyft to &e 

afcila » >b a bte' - uir •- - • 

''I'tsi&Mk agfto^tt'tWvie^ bf ibe'eonplUner^ IMI 

ffieti6t^Mof dB&l^ 'ft 'to- Be considered as a ittfiBm 



95S 



DEC^IONS^OPTITE^ 



Ni 



IT Jdn- 1^1 wBich' fexpires'bjr the death or banknijprtcy of Ae 
Be^^Irid^;' ^^^* t ■ beeaiilse, if it fe to l)e considered as k lira 
at all, it is evidentljfr a pitMntratotjr m rem guani, ^ 



Wilson, 



StMt 54 Geoi, 
JIL c. 137. 



jti^Aiin jertiLthemanflatary has power to execute at any time; 
*Baiikrupr. ^^^ ^^ authprfty or intervention of the max 
^tEstra^^n: It fo very'true thiEtt a statute (the act 1696) wa 
c^^ry to kuthorisie precepts of sasine to be exe 
lifter the- death of the granter ; because they, aM 
hiandktes t^ rein suum in favour of the dispone 
4f snch a nature as require the graiiter to a] 
6i(2ier in person or- by proeuiiatory^ in order t^'c 
them to be jexeeuted. If, therefore, the clausel of s; 
jflie bond only authorie^d the creditor to biing tfa^ 
t6 sale as conunissioner tit itt*ocurator 'for th^ d< 
and inliis name, I shouM hold that such a nmi 
aithongUin a certain sense a procuTatory in rem 4 
might fkn by the death of the debtor. But the 
of an^ heritable creditor with a power of sale is \ 
iSSeat^t ifrom this : He ia himsdf the seller oi 
teSate in virtue of his in£eftme!nt on hid bbnd ; at 
toirveys flie estate to the purchiaser in his own t 
without the authority of the debtor. If this pc 
or n]landate; as it is called, fell by the hankruptc 
the debtor, multo magis would it be extinguish e 
his death. But it is quite cleat that this power 
be ^eficecutdd after the death of the granter. T] 
fMe; on <li6 point of law as to the power of the c 
tpr; I oannbt. think the interlocutor should be alte 
*': L&rd^PitmiUff.^^l am of ithe same opinion as ] 
6Hfettle^5'tK)t£L'a8 td^e lanv cf Ihe case, and more 
fibutetfy to to /Ae propriety of consul tiiig the o 
jtitlgpM dH^a^oint of this imtiite. I shall only sa 
^ite^esft, that I catinot yet see' any sufficient grounc 
Wba<iii%»'t!ie right 'lield^^l^ creditc 



lniiiiMiislf CDftciuqNid ift . the dEftUovvtft <gwu(Hlr?hT< • «^ m ,4^ 

:^- The dw^er-tent his momy^oA the faiUi of .t^idiff Jw«^*^'^«/i<^ 
lllitJpnjA s^ttritfy which he obtained ffronl.the ftuxt^/z/rU^^jr 
IP debtor^ and by which tber^ ^ conveyed Itohi^ 
Inlands, aiKd a^ pow^ to. sell the }mis for pa^eapA 
f^Jiiadeht The object of the dmrgto^ in\t>btwiiiig 
fHi disposition^ was to Secure hiuiaeli agi^ii^ tb« 
pm^T^eiices of the iueolvency or Imkn^ptcy.i^ tb« 
fUmm debtor^ Th^ ev^ thut oouten^pUtedibm 
l^hanpeaed* The commoa dehtbr Jmi b^cQni« 
iMbi^ But ire do 9ot think that the thiixg^t can 
||(l^?)ed k>f the.beoefit ponferred m lmn% tbedjig^ 
|flitipii» mwely because the jeveut h«fe ii^ppetaed whidt 
k coAtemplat^^ und dgaiust the ^ffet^s of : widfch he 
pata^tO piTOteist himself^ when he stlpidated t|i6l;'the 
iw4» should be conveyed} and ^ power of dalegvaiiled 
telkiiB. Thial^st id a %al Bttpulation ; and itwaa 
mm^ and rendered, public by the ^bargei*>,in^; 
waV ioat 93 much as the . conveyance itself to the 
Wt • : :i? 

/* W> dotiot thidk tilmt the legidatitfe could intehdt 
taoc d^ we see any word^ in the bankttuyt act toindiit 
tM^ that it wa9 Jherelby iufcattded to afiect the ri^bti 
<Srw? h^itftblq creditors, ip: Ihatsttchicaredj^^ 
^'M ^Bc^tratlf^ deprived of J*y fwrei^Mncd of 
h«<ifit.»«nH{e4 tp tfa^m by t^ir jfcevirtw jiii&ftaiei^ 
Xl»e;e|)iiicta^ th« ^t^te^ m it appejars to . us/ waafti 
Y^^ thie;tv|fat^ the es^^^^it stood in the peirsoa 
v^'tlHs .l^aidq^pt;^ siibjeet to all the iml but^t^aaiind 

VaWfejrtwna AWd« whidi.,the bankrupt bad bridit.* 
" It is said that the value ^ this eatttte e2£^i| Hm 



sm 



l>K€!»apNft <»» THE 



X( 



ritif. 



IIL » 187. 



17 Jis. iiM wpspunl j^ /tbe 4^. 4n^ to the c^iarger, mnA th 
Be^^^ridgeC ^^®^ suflfer .^p i^jiwy by perini it to be sd 

wa flon> tbe ti^pi^f that,i OB Urn otfiiT hand, a sale b; 
Mighi im.$9m obafgtur im^ jbe atteadad witb kps to the postp 
jfueiitaNe and pcorspnal ereditom* as the lands» if 
bgr liilD^ Ji^aj not bring their fnB value, from ilie 
cwltylUid exp&ofie to whidi the pmt:baser will b 
ppsjed in inaldng op a good ti^ to the lands ia 
Wfib i^r^mde. Snppofldiig all tiii(i to he true, the 
teo atid the other creditois hare the proper rei 
intfa^dr own powWy by paying the charger the dcbl 
tp him. i^lt while hi$ debt remains unpaid, w 
MitMe-howhe can be deprived of his right, bee 
it ia possibly tiiat the exerdseof it may eventi 
be atjb^sded with disadvantage to other creditors, 
were aware^ when they contracted with the bank] 
that the charger bad the privilege of which tliey 
wieh to prevent him from availing himself, 

'^ As to the alkged ^fficulty atld expense of ma 
tip 4 gpod ^tle in th0 person of a purchaser froir 
ebarger, we are not i^ware that those are oecasione 
lljKxeased by the- sequestration* Had there beei 
sequfistiation^ or hud the bankmpt been a person w! 
estate coidd not by law have been sequestrated, 
difficulties as to the title wpidd have been just 
s^nie. Hcoibi^ it follows thaty If this consid^raUc 
to prevail, the dispositiM and. infeftment in fa von 
acreditorf in so far 4W ^ ;power to sell is thei 
confeffied, nupst in every case become nugator} . 
tbetacnth fa, that <th^ si9{^)Qjsed4ifficulty is altogel 
iijnaginary. It can only uriad from the postponed 
ritl^blc(Cceditoys acting against tileir own interest 
refn8i]^t0 4x>natr-in a transaotioB which must be 
their advantage. We do not think that those cp 
ior^B, fWrthe^riiStf^i^ ]M¥^f ^ tj^e creditors at lai 




li^mm t» «HtiM 'oil im cbjeifttti, %Mc!iJ ^i^^'^^^^;!^ 
||jil^ 1^; mttst be of £helr owtt eieeatili|^. ' '^ ' B^retidgt «. 
, ^jOt'dfriiiiott; thirefore, fe that, by lawi th^ berita*^^^ 
JnSffittr/ ^bxjse rigbt is constititted by Mc^ieiitiH^iit Ami 
URk^Wi^iaDd inatmer here done, cannot be deprive ^^^j^in^ 
iMb rijllii: to ^dl: StlH, howerer, h is a right ^^I'Su!^ 
odiitroL He is but an incumbrancer, and iixh^ni' #. W. 
i^fats taay be lawfully created- by the co!n-» 
'debtor, to wUcb the creditor must pay a certein 
ptdvldad H does not injure his owii rights. 
*i he is, to a certain degree, trustee for the coin* 
ir4ebtor,aiid dT course for his representatites; and 
when he exercises his right, he must do so 
'''feaefief al, and libt hurtful to ^hose co&eertied; 
tAtd Kdmioudy, Ae Court wt>uld certainly in^ 
In thef fektMae of this xifgtkt of sale. NMt, iii 
pP^rSMslit'Cflse; although neither Ae common debtor 
^ the tmsle^' his l^al representati Ve^ can, de Jure, 
^jjiie'iille efeditor of his right of aelUng, if they cm 
pyjlflL fiy%fc V^rsdltor that^ hy his adopting a eer^ 
fk^Mdlf i6faak? no ways iiguriiras to him, Che fafgh*^ 
#^iiHR)le')^e^ -at the least possiUe expense may 
iiSliAiiMI,'*It aeetiw reasonable that the Courts ea 
I i i fc/aft, ma> «a direct lb stach a situation, both par- 
I wffbnAi be- ohhged to coneuTi if the cqtfcunenee of 
iMV^tt'teeeMttry to malce a title to a purchaser. 
I I tol ' feaii i to be no solid cAgection to the trustee 
I ltt%his powers to the heritable c|ieditOT8 to faciii-' 
I A prti|Ai^iAe t^ihe^salgeci^ prorided always, that 
wt^^tsoMr nik defrayed aad" bome^ proportionally 
tHlbfrlrtHy'reee^ Bttt,4n tl|e present 

^^ fhistdefhdiF thevhi lio jiitt gi^ouAd'ibr his in- 
^ii^kl^ tfl the heritable creditor.** ' 

fi^ CbaH^'^aiWifih^^^ the iiotei attd atf. 

^>nd to the iateilocutor reclaime4 against. 



S6l 



DEdlSK^lJSf dP THte 



EoWl Ol^Aty, ATrt^ton.' - Act- Draft c^ Fcr- (Mo 

Cuningname, Alt t7inn«j^n, Sandfonl D, I 

. W. S; and W. Alexander, W. S, iV gents. F 



FIRST DiriSION. 



No. XLIX. 



20 Januartj li 



JOHN SIM SANDS 
against 

MEFFAN AND OTHEKSf. 
i^ROCESS. — ^ADVaCATION.-i-STATp 6 GfeO, IV I 

$ 40. — ^AeT OF SiSderunt, 11th July li 
1. It is 7i6i necessary 9 under the above see f ion 
judicature aet^ to entitle a party to advocate a 
Jram ari inferior courts when an inferlocuior all 
a proof has been pronQuncedy that if should aj 
in €:Jcpress words, ex ftefd of the bi/l, that he 
pecuniary claim qf upwards of L.M in amoui 

2. A petition being presented td a sheriff for adm 

w a produratbtf and the sheriff having alloitt 

jectlons to he given in by the ttJier proairafon 

having thereafter dosed the record^ and prn 

ted an interloctttor allowing a proof, an adtoi 

found to he competent under the above seciion 

judicature act. 

t. Whether a cause advocated umler the abo^e c 
of the judicature acfy upon nn interlmutor oftl 
ferior court aUouAtig a proffj must neceamri 
fbrilivbiih remitted to. the Jury Court. 

In a note at the dose of the former report in 
case,,(« Dec. 1888, No, 23^ ,p* 150) it was si 
that, upon application for a ^arrant for exti*ac 




UAwiaU^ mSBB rifp^hyAe LatA ODdittary^saaaflo. Mef- 
>y thfe^Dwd President;' in Wms^rif <he V6th^"^>^^ 
of the act of sederunt 11th July 1828, it wadproem. 
an interlocutor of the fbrmer, which was ^ot^^^^^^^j^^ 
I and Eirainst which thev intended to reclaim^ <'• ^20, */et 40. 
When the recldimihg note came to he advised, it "WB&wthJMv I82& 
tifst thought by their Lordships that the signing' of 
StitaAdnEtbr by the Lord Ordinary Was by mistake^ 
i tberef(N«, the signature of the Lord President ought 
I to be adhibited, which would render the interlbcu- 
rt judgment of the Inner^House, in terms of the act 
Eiederaiit; but, after somfe discussion, their Lord- 
I caiQ^, ultimately to be of opinion, that the clause 
k ictof se4erun£ did tfot apply to the present case, 
"" Tdirected to cases in the Bill-Chamber ; where- 
I icase was iii the Chitef -House on a passed bill 
,. isAlk\ 'so that it did liot fall tinder the pro^ 
\ 6t a^e act ; and the interlocutor was merely 'a 
pit of the Lord Ordinary, against which it Was 
[It to reclaim. 
^^ftk>rd8hips^ therefore, having held the redaim- 
^^^'^lo be coihpetent, the' former objections to' the 
r of the advoe^idn were^ in substance, re- 
fviz, I. That it was incoiiipeteiitj because it 
t'ippeair in 'difect terms; *^ Jadie of the * bill, 
le aQvbcsitor liiUl a jiecuriial'y d&im of upwards 
' fn ieHhount/ 2. Becaiise the present question 
^aoj truly tLtutuse or process' within the meaning 
"^wti'te^W ireiiied^ by advocation Vds in- 

^'iit)iJ1^'^btft Wertly aif application to the ^he-^ 
^tf^ia^ids^'-^ai*^ '^ ^ 

To these objectfcrit)^,^ t%e tbrmet answers were also? 
f'P^rfi vi«. That it Was sufficfent to entiile a party 
W Vhmm ifig'-^ifttB^fecWbir&Pthe' ^taih^^im ' 
•Wto Vjf^ itei^jqlfeirf^^t^if s^ife^ if ft api^ 



sa^ 



fXRcmom OF thb 



a^i^^wttouut to upwfurds of L.40, of which theve co 
faii,£c. ^Q^ dK>ubl in tba ppeaent instance ; and, 8d^ that, 
proo€i9. procQ^ings whicdi bad been held in the inferior 
^i^Hg^/f^^^ qiU^tioQihad beim made a ppooeee^ to (2ie el 
cv 120, «Mt 4o.rend^Dff W adFOoation eompeteiU;. 

It was ^e«t o^€C^ on the part of the procani 
\it. That, on Ui^ siippoaitLon that an advocati< 
in suob oircw9atan«e0 competent, if a pvty dii 
himself of the provision in the statute, the only 
provided by ibe aict^ waa tb^t the cause sbouU 
mitted the JKury Court ; 'md it w^a not con 
Smt the party %o. iiosist, or for the C!o«rt to. hold 
^as not a ftt subjlect for ^ trial 1^ j^vryf bat 
different <?Q]im§ should be followedt by remitti 
fause wilii ix^truqtions to the iit&rior ooiv 
which th9F0 wc^ no iiut!fe9rity in the 9et of i 
ipent. 

^, ThQt aljthpug[b the IxHfdQrdinafy had m 
the cause to the Court merely on. the objectioDS 
competency of the adyocati^, thci Qoiurt had m 
repelled th^se pbjectipnst apd found the adi^ 
competent^ but h«d gogg at gre«t deal f«rtb^ 
^ad directed the Lv4 Qr^naigr to proneunoe i 
fiiooi m the merits^ Of 9»t I(Mpt <m the regularii 
propriety ^ the iM;oce«$Rgp bi^ the iitfexior eo 
questioa whic^ wap)^^ c^ii^t^tly before the 
i^though inotdeotal^ i^ei« b«d bem swme Hsi 
4bout it. Th$ only poi«^ cejioirtrE^; to the Qm 
tiie competency ; a^d it w^ JJupw tjijia potat 
therefore, th^t any i^^b^^loQ^tor CQnU^b^proaoi 

J(t w«a afMU^^jSfr^l. 7^ 
^^dd^tor, in^ bjri^giiig. %^i^cc»tksm, was to hf 
^ni^tio^ l^^bUdy trigcli ly a ja^ it w«a n(lher 



tii[l#tlii94idMMflmt ifi^M» ebmprtbMy i« etfuid only sJ!^ ; ^^. 
iNrtite dfeef ol( li^mittitigt tile esQMC to tUe Jhiiy^"^^^ 

iMbutriPiM M tafiloiritj^ ifi (i» adt of l^Huneiir^'^l'S^^^ir. 
il^ie fo fcs tridd hy ar jurf^ ifiusC» ex^ niKesdtate; \^\vmi^\9M. 

of fids idM; No dinction tn»r giiroi to tto^ 

»to v^hat should be donie; It was^ only de^ 

thtft; wbMi an order iilowing a* pi^oof was pvo- 

adveetfttw aiioHld be competent, a«d> 

tba \M Aeidd* be passed without dlseussioir} 

m dDracciott fbllowed that the: oid» for' puiool 

\m tiiipleaieiited \Pjf diis Courts or by tber 

Ctart The provfeiod was thst; if the painty 

tlMk Ate qnestion: ought to b& tried; by a; 

\ this was the proper time to demand it, o^r- 

the proof, as ordered by the inferior court, was 

^hfL. in'<H!ider to pfeveiit this; the ststote pl^o- 

ftilt an flftiroratibir to'tfae Court of Session shouts 

; tnitthe^Goakre wito not tied down to re-' 

(h^ «litts&to i^ivofif Court. The statute here ba^ 

iMih firaned'm teiws sftmillu' to those liseA where 

'iMitta(lepini|>drative0ti tiie Cou^t to^ remiir cases,^ 

*; «» fte Jwy Coaort. Where thhi' wwrintend-^ 

AwrVmiiB aM deal* a»dl estprew; bst the wordBH>€ 

^j^Meaf eiMsr ar^esMMitily dilRBreift. 

l'ThMirw#a ar tfrtstofter to say that partieafaa^ 

^iMWhMMii at ik& f^mm* lakrisittgf of this caa»e,. 

^MIP tlM p w p iifecy ««# mifvaiilty o# the pitKseed- 

iogil iPhich httf been adopted^ in the sheriff court. 

^'^^^'yiifif'^g^ bmm tf ftiU^ discussion, 

•*l»*#^Hi«»lWW»r^^«i^^ of had' beetf'proj- 



366 



DECISIONS OF .TJHE 



H 



9» Jan. 1839. ]^Qmi(^g^ after matuTc deliberation of the que 
Sanfls e.iief. ^^^ Cotirt pj'opeeded on this principle; thajt h 
ftm, ^. class of objections which related to the pe] 

Process. chal-acter of those who might apply for i^ 
shoTo^iv. ^ procurators before courts of law, third | 
c i2o,tfe#. 4o.had no riffht to come forward in the cha 

Jot9f sederunt ^ ..,,,.. , i ,./•., 

II Jufy 18S8. of privileged litigants ; and, as the sheriff m 
roneously allow;ed them to appear in this cl 
ter, it was necessary to recal the proceedings, 9 
ordain hira to resume consideration of the pc 
for admission as it originally stood, and to. 
such inquiry as he should deem i^eces^ary, fc 
certaining whether the petitioner was a .fit person 
qualified to be admitted a procurator in his 
In such a case, if the sheriff should act wroo 
might be brought before the Court of Sesdion.bj 
tition and complaint ; but third parties had no 
in such a question to appear in the character 0; 
vileged litigants. 

The respondents asserted that the proceeding i 
ed by the sheriff, in this case, in allowing the 
curators of his court to state objections to the a 
sion of tlie advocator, was not inconsistent witi 
practice of any sheriffdom, many of which hi 
experience on the subject, and that it was dii 
sanctioned by the positive practice of at least t 
counties, where cases of this kind had occurs 
were provided for'; and that in the sheriff-coi 
flie county of Perth, in particiQar, there was an ex 
regulation, that where objections did appear to th 
mission of j^er^ons Applying to be -Admitted as p 
riitors, they should be given in by the qther pro 
tors of court, in the. lottiuier which had been ad( 
ia the present irisjatfce, T|ie^^racy of thi9,i 
meut, however, was denied on tHe other side. 




Ho. 49. COURl* "OF SESSION. 867 

Vfon the question of the competency of the advo-*®*^**^ ^^^' 

'teiii a majority of the Court (Lord Craigie dissent- g^^^^^[[^^^ 

1|() were of opinion, upon the grounds stated in the^'^^^c. 

'ilher report, that the advocation was competent nn^prg^ 

inr the clause in the ^atute, and that the objections ;^^^^'^^ 

teeto ought to be repelled. »• 120, sect. 40. 

' Upon the next p<)int» whether, holding the advocation 11^ jwy 182a 

Ibtecomp^tAnt^ it followed that the case must de piano 

''le.toitted to the Jury Court, their Lordships were 

'Ittttfliiiiously of opinion, that there are no words in the 

ihtate which render it imperative on the Court, in 

ftttdiacase, to remit the cause, whether prepared for 

liar not, to the Jiuy Court. It was only in certain 

'tees that this mode of procedure had been pointed 

*ilDt as imperative ; and in these the directions in 

^fte statute were clear and unambiguous ; but in the 

iiesent instance the statute merely provided that, 

tAere a party thought. that a question ought to be 

tried by a jury, he might advocate the cause, and that 

tbebill of advocation shcMild be passed ; but it did not 

iktet that the Court or. the Lord Ordinary must send 

Tie caase' to the Jury Court, but left it to their dis- 

Ottion to deal with it, and prepare the cause in such 

*t way as they thought proper.— .ix)rrf Gillies ob- 

•ored, that one great object of the legislature 

tag to diminish the number of appeals in trivial 

cases, and particularly where a proof was necessa- 

!jr; hut those who were concerned iii framing the 

irtiMte considered it a delicate matter to interfere 

tift the* right of appeal. It was therefore provided 

fliat, whiere prodfs were to be allowed and taken in in- 

&iWoQfuirt4, the Court of Session, in reviewing the 

JQ^eht jii^Kseedi^ sucb proof, shoyld distinguish 

m tfieir interlocu^r the several facts, material to the 

WCi wbich aj^fareii't^^ by the proof—. 



308 



BECISIOfffS OF TUB 



fi« 



^ janM^ft. expressing liow far they hiiA proceMed Ufhski ' 

5ands p. Mef-*-^^ ^^ fnet^ OF OD matter of law, and the se^M^l p 

Um slc ^f Y^^y ^iiich they meant to decide ; aad Cbe jodjg 

Proci-^t. so pronounced was to be subject to appeal *anfyi 

itiTeoetiF.^^ the same was affected by the findinge in imiti 

""V V^*/5>rfJ^^t; ^''^^^ ' But as the right of appeal, in regaifd to ili^ 

i{/A/M//^ifl2«pirig on matters of fact, was thus cutoff, it wafi pi 

ed» that as soon as a proof was allowed i^ tll^ inl 

court, (unleas in the cases particularly eKcept6d*)t 

of the parties, who might conceive that tbe cause d 

be tried by jury, might remove tlie process in* 

Coiu't of Session by bill of advocation ; fttid in oa 

such bill should be presentedi and Urn paftiw<] 

proceed to a proof, they should be held to haW w\ 

their right of appeal against any judgment to be 

noiiuced by the Court of SeBsion, so far as bj^ 

judgment the several facts established by ibt ; 

should be found co" declared. But it did iiot^i 

from this that the case, after the bill of advoc 

laad been passed^ must at once be sent to tba 

Court, If this had been intended, the act would 

made a special provision to that effect. Thai 

being thus brought into the Court of SessioHj 

Judges w^re to de^ ^itl} it as if it had ofigii 

there. 

But although this was the opinion of their I 
^ips, and although they also thought that tfaeni 
a radical defect in the proceedings before the sfa 
a majority of the Court held that they couid not 
nounce any finding to this ££Fect in their inter 
tor, because the only question which properly 
brought before the Court hy the Lor4 Ordini 
verbal report, wa$ the objection to the ^onpet 
of the advocation. 

The following inttrlocutor was accordingly 



ymrofmmoH.^ 



t69 



hoBtds having adyiaed the reclaiming ^ J«n- '^^ 
ispondente, and i^p heard parties' s^jTmI^^ 
great length; adhere to the interlocu-^°> &c. 

of^ ia as far as it repels the ohjec- process. 
mpetency of the advocation ; and *^^^/^i^^jy 
isa the desire of said note : Find the^ 120, sed. 4o. 
[>le to the advocator in the expenses ii juigijs^si^ 
iiitberto Incurred by him in discus- 
[nary objeeUrai of incompetency, &c. : 

the qoestion i^orted to the Court 
hrdinary related only to the compe- 
viMsaiiati^ remit to the Lotd Ordinary 

and proceed furth^ in the cause as 
\ shall seem justr* ^ 

tdinsfj. ^ Foi^ Advo€a(or, Soi.*Gen. 

wufU. J, J. Fraser^ Agent. Ak. Dean 
^creif) Cockh^m^ Itott/. Uamsay ^ 

G. 



me again tiefore tBe Lord Ordihi^, tlie respoxideiiU, 
htd tLfh pendHil iMoMt i» tito ({vM&Oa wUcbbaii 
$lie CmiA^ Bffid i9 4«fe4Dce to the opiiiions ex* 
of the Judges upon the proceedings that had beea 
!^' c^ycd £av6 to #itttdtiw their appearance id 
^ diat the judgHeDl prosMiaced b^ the Lord Op^ 
laat^ under the instructions of the Court, shoulcl 
3t as to the matter of expenses, Which bad beeii 
r* AniitUrloctttOf't^limcfM 1<^iio0^Hip|^ 



370 



imiisi0ii»jomwi 



.": )i rx ' .^ ■.,! J 






MRSr JDIFISIQN 



a^h, 



80 Jamutr^ U 



MURDO MfKENZIE 

against 

DUGALD GILCHRIST. 



Title to Ptms^E.-r-SALMQN Fishingi^.— *J(j 
> tor having right to certain aahnon fishings in a 
found to have no titk to prosecute an infimm 
to^ for fishing opposite to his own lands, on th 
gaiion that he had no r^htdffikhi9^»^''-4keja^ 
not having any title to these fishings Mmsel 
not allying that the defender fished m am 
prohibited by law. ' 

7 HE pursuer, as proprietor of some of the a 
fishings, and tacksman of x>thers, ia the frith of 
noch, and Kyle of Oykel, and rivers flowing ti 
brought the present action against th^ defend 
erecting stake nets, and killing salmon, opposite 
lands of Spinnhigdale, which was helow the fii 
))elonging to th$ pursuer. The suinmons cone 
that it should be found and decl»ed that the* 
der ^ has no right or title whatever to fi^ c 
' salmon in any part of the said fri& of Dol 

* and more particularly oppo^te to the said lai 

* Spinningdale, in any manner of way what 
and it farther concludes, that the defender shoi 
prohibited and disdiai^ed from employing stab 
OF other engines of any description; in thefr 
Dornoch, and more particularly opposite t6 these 



^KFiyC^/m8»iQil. 



vrt 



inst this action, it was pleaded that.^^^^J^IJ:^ 
ler were to instruct that, as libel- M<Kenzie». 
'ietor of certain sahnoo fishings in^*^^^|2^ 
voch^ upA. Kyle 6f .Oykel, &c, henuetoPursus. 
itle to insist in the first conclusion j„^^ 
which the other depends, of ia liny 

goes to deny the general right of 
fish salmon at the place . libelled, 
:>f way, however legal or unobjec-. 

Whatever might be the case with 
ions specifically laid against a mode 

is unlawful, and which it was the 
ion to put down, it is necessary to 
aeeute a general cpnchision against 
Lt the pursue* should not inerely be 

fishings, in a different part o^ the 

or shore where the fishing corn- 
led on; but that he should produce ^ 
to^ or special right in» the particular 
on. Without this, it is Jus tertii to 
[isist agninst thfs defender following 
ig which is not prohibited by law. 
ioary, ' in respect the pursuer claiim 
;hing in that part of the frith of 
ing the lands of Spinningdale, meor 
ibel, finds it is jus tertii for him to 

defender has no right to fish there. 

prohibited by law; pud, th^^fiirei^ 
)eeti<»i to the pursuer's title to insist 
n 80 for .as it concludes that the de-. 
right to fish os kill salmon ifi the 

nfyimd, and ph^d^^ 

tast«jgbt, either ;a8 proprietor or by; 

idliEngt above Spinningdale; and he 













F 

i. 

■•■13 



a^» 



rOSCfiUOKSt OF THS 



1 



M«i(eR«]e«. Spiniiiti^iddew The liefettder has not ppodu^c 
Gilchrist^ title or right of ealropn fishing, either pppo$ 
7^i!etoPursveMnd» of S]^inamgABl% waay other pwt of tfa 
f^r^'^'-nQch frith. 

The defence that the ^efeoder's fishing is Jtt 

to the purBuer, must m^an that the punuer can 

no benefit from Objecting to the defender's righf; 

and that> iVhetber the defender continues cr eei 

fish, it cannot affect the pursuer's interest. Every 

heritor has a direct interest to prevent an midej 

tor fronl fishing, who has no right to do so ; tfa 

suer has a strong patrimonial interest to put do^ 

defender's fishing, and thus ]>revent him from 

citing the fish from getting to the upq^er static 

Was this interest which was sustained in the Ta; 

(Duke of Athole v. Maule, 7th March 1812) « 

dent to support the title to pursue ; and the sal 

ciston has been pronounced in the case of th< 

fishings (Earl of Kintore v. Forbes^ and others 

May 1AS6) where, although the fishings were 

mately found to be legal, and the defenders we 

soilzied, yet no doubt was entertained respectin 

title and interest in the piu*suers to insist in the 

lenge ; Sir James Colquhoun v. Magistrates: of 

barton, and others, 4th July 1804, But the mc 

rect authority in this question is a decision of tl 

oond Division, in an action of declarator at the pi 

pursuer^s instance, against Mr I^ouston of Citict 

duding to have it found and declared timt he hi 

right of salmon-fishing in the frith of Dornoch, e 

verso of his own lands. The defence agaioat that I 

was, that the pursuer had no title to insist in it ; 

the same argument was maintained as in this case^ 

it was Jus tewtU to the pursuer, as he Iiad no rig 

these fishings. The Lord Ordinary repelled tb 




mrvrmm^m. 



9n 



rire the dcfeader of a property wMcfef^^'^ ^*- 
filime» iduk tbe jpttvsujer cmM niot 
y M iiis; But Chis dcM fi0fc 29|))j: 
L are not tke etchi^va xm^rty of 
i jointly by many individuals, or 
1.^ a]l joint rights, or « cominpb 
leey ^of the dafondbesp's ai^gumeiit it 
Midi ^ mitigeot «9 the imrtMl rigbta 
3 salmon fishing of a frith w^veri 
Brest gitfs tb ali tbe heritors heUing 
tehtfig a right to olifeet to a« ^* 
right, Tfhose g^in must be their lQi9/ 
s been establii^ed as a fixed pritidU 
rhere any person is engaged in fiali^ 
g salmop, itiegally, every heritor of 
) the river where such prdceedinga 
OS a sufficient interest to ebailesig^ 
St on ihetr being judicially suppreai 

does not dhq)Ute this, but says b# 
any illegal mf atts or apparatus, but 
Q the l^al mode of fishing. But # 
Uegid, either from the use of illegal 
ffn the party having no right to fish 
' ; ftu> whether he makes an impfiq^ 



tl^4eflMi4eKt that the jepprt iras not corr^t ; but, 
i to the Lord justice-Clerk's notes, the Court Wer« 




if 



1 s^ ..: 



■■.I ■ 7 



••■5 i ••.'■• ■ • ■ -n •■ •■{ 



87*4 



BEGKIONS OF THE 



ioj^n.in^r^^^ of hfd title, of hks no title whatever, his pi 
M'Kenziet;. ingsHiust be equally illegal. It is one speciei 
GUphrist^ legafmjr lb fish by engines which the law forbid 
Tioeio Pur. it Is another fOF a party to fish who has no 1 
TaJfkonFith- right to do so. Efoth are equally illegal in the 
♦'V^ law, and it is of little moment whether the ilk 

He in the mere mode of fishing, or in the want c 

in the party to fish by any mode. 

' >fii*ir^jrj?df for the defender— The pursuer do 

pretend to have any right of fishing ex adverso 

defender's lands, or any right to the fishing earri 

by him. It id a settled rule, that the proprietoj 

subject^ however clear his right may be, must 

according to law ; and, if he does not do so, any 

who may be affected by the transgression of thi: 

may challenge it, although he may have no rig 

the subject itself. But there is no analogy bel 

such cases and one where a party, having no rig 

interest in the subject itself, attempts to niaint 

right to challenge the legal use of it. Having no 

to the subject, he {las no title or legal interest to 

the. challenge ; because, ^ven if he were success! 

w^uid not convey the subject to him, but only ; 

way for some other party to exercise that rig 

which he had dispossessed the defender. The pu: 

says that, if the fish were not intercepted by th. 

fender, they would get farther up the river to the 

suer*s property. This might be pleaded by any hei 

however high in the frith, against any heritor, i 

ever low. But such an interest cannot give a pa 

title to insist in an action like the present ; it is 

?very interest that gives a title ; it must be an inti 

which the law acknowledges, which this is n©t. 

rious analogous cases might be stated, where svul 



•i 



wrtt of session. 



^Ji 



sue. 

Salman FUh* 



; sufficient to found an Ai^n,; fe^^ff^J^MW^- 

en already decided in a irase^pr^ci^ely M*kenzi4> ^. 

f Hamilton V. M*CalluniAn4 Others, ^^;;^ 

Edgar (Mar. 7824) which was a casfe rm to r^^ 

be present. 

rred to by the pursuer do not ^ply ; ^^' 

mplaint was generally against an il- 

shing; and in the questipUo between 

ihoun and the Magistrates of Dum- 

; of title, as applicable to th^ jcircum- 

resent case, was not argued* In the 

L the pursuer and Mr Houston, the 

bands that the general question of 

3 was not there discussed ; and, be- 

le the pursuer averred tha^t he had a 

[igs opposite to the defender's l^ndg^ 

I point is that of the Duke, of Hamilr 

5d to. 



bered to the Lord Ordinajry'a inter^ 



hdinary. Act. Sol.-Gen. (Hope)^ Bu* 
Hugh Macqueeuy W. S. Agent. Alt. 

ood. Inglii and Weir^ W. S, Agemft 



S70 



ftEBiSieNa.OF THE 



SECONB^ mrmiau. 



No, LL 



^Jmkierfj I 



I'm TauaTEES or JAMEg NlSBE'l 
Thb TRUSTE138 w THOMAS MORRIS 



4lr A^ ^ «( i»€AaseA pm^ier qf' a eompan 
flatting a debt^ &n i/MkA ike trkmmtl jwese 
hM rurif An he re&iiiq^&mii9ff, 7> not s^fficiem 
Me the d^t as a elai»^4igminst ike est^e of a 
partner r ^ eempant^hmtg flijssoked^ mid boh 
ners dead before the action tvm ;w*<?<i 
IL Indefinite payments to account entered in tlu 
0fa merchant^ afe ne4 st^Sllcieiit evidence ta con 
a debt against his estate. 

(5irotH5fi WiNTON and ThoBfias Morrison carr 
buMBASSras butldeQ-^m Edinburgh^ unde^ the t 
Win ton and Morrison ; the interest of the fcrmer 
twtj^thirds, and of the latter, one-third of tlie 
^fMl loss in the concern. This partnership wa 
solved by notice in the Gazette in 1814. I 
son died in 1820, having bequeathed his esti 
trustees, who were the defenders of tiie present a 
Winton died about a year afterwards, having li& 
coirreyed his estate to trustees, of whom his »or 
present George Winton, was one. 

In 18SS, an action was brought by the trusts 
the decM^ed James Ni^bet,. ploiterer in Edinbi 



QUR'F OF SSfiSIO^ 



'9Sff 



tees, both of Qeot^ Winton w& ot^-'^^;^' 
m, as representing their con8titueBt9fNisb4>raini4- 
}r plaster-work alleged to hare beettsonvrru^te^ 
eompat^ of Winton and Morriton in 

____ -,___ Pre^criptiotu 

1810, and 1811. maL U7d, f. 

this account were thits stated :-^ 
executing plaster work of two of youi* 
in Abereromby Place/ LMIO 
J carts of lime-shells and 
»9, extending at different 
rom 22d January to 24th * 

>cr, - L.8 19 

esire of Mr MoF* 
ts of lime-shells^ 
Le above, which 

Mr Wintcm in- • 

- - 2 8 

- — --^..*^ 6 11 tf: 



L.216 II or 
account of piaster work 
Gzombjr Plaee^ ^ « 130 O 0* 



i r;g | »,r| » ■■< ■ 

BalanoB L<^ 11 0- 



which balance the sumaons in the pre^' 
[inded f^^ainst both sets of defetders^ ' 
thai Nisbet had died im 1811^ leaf- 
to thniees, of >di(Hii the ! late Oeorge 
le, and had accepted and: eimtinued to' 
31 his death. It wa» ^leged (but of 
\ no written e:7iden<ie) that a cbpjr of 
ad been fiartiisiied by the war Mid re- 
iWititoii to Moifriaon m 1816^ aidd qw- 
leaire, as above,, and than, furaished to 



373 



I^qBW^AS OF THE 



n 



Prescfiption, 
Sidi. 157i), cw 
8S. 



^J*«l^^ Wijjtp)ijii;i|]f]g^gvF^^ letter, a ot] 

NiSrrLvW^ Pftvid Nisbet'i* letter Ikjo 

ifri'/TrSS;'^^ ^'''''^'' \Vintom Plea 

\xece^;ff0i^f;^s^ I stales, np to this tuiif> of itu 
* , coi{nte due by tUe lat^.coiKiftiiery mi4 yourf^elf^ m 

* I lipgewiU prove correct. The rea*4on for mj 

* U7g ;80 cM^ tj^9 parti(?(ilar time is, that Mr Mwj 

* latt^Iy caUe4 on itw ttpx] signified, tlial it \ra8 ui 
V to ipakp a fipal aetf lenient now, before dosing 
' paitiK^rsbip cpncerns*' Mr \Vintoij did imt ajj 
to have returned atny ^Titten ansvrer to this kttei 

The defexidei-s, Morrison^s trustees, ^ho did 
pretend to hwe a^y p^sotml knowledge of tlie U 
action, pleaded the triennial prescription. 

The pursuers thereupon gave in a general lui 
of reference * to the oath of the defenders, whe 

* the account libelled oals resting owing,* which 
austaiued ; a<id in which George Win ton,, ^unior^ 
ptearefi alid deponedr * That he is the eldest soi 

* tl^e late George Winton, builder in Edinburgh, 

* 18 Qiie of Iiiii acting trustees under a trust-settlem 

* That it consists witli the deiJt3!ieHt's knowledge 

* his /atjher carried on business as a builder afciig i 
' the late, Tboinas Morrison : That the depone 

* fatiifer ha(f a share of two*thirds of the conctrn, 

* jiones, That the late Mr Nisbet plastered two hoi 

* for Wjnton and l^Iorrlson in Abercroniby Place, 

* received from them partial payments to account 
' plastpring tb^se bouses, and also for other jobs w 1 

* he execiited for theih : Tliat he knows that an 

* CQuiit wasi i^ndered to the deponent's fatliei;, 

* work ^6ne by MrNiabet; but whether it was i 

* der^d, before or after BJr Nisbet's death the depgn 

* 4p^ not kapw ; but ttie deponent heard, his foti 

* nay, tbtat he was satisfied of the arcurac\^ of the ki 

* acco,unt: Tm^t the deppneut doef not^How wh^tl 



»i 



>XJRT OF SESSION; 



Sf^ 



ras alire wTien the acdtoftftlTM^te Wiii 25 Tin. '^tM^ 

t the deponent's fathei''htbrdve^'Mi^j^^ 

it the deponent received '^e' icdrttot *«^5 "- ^^^^- . 

, . , . , , , A ir^ - . .» >adn '8 Trustees, 

before his death ; hntfttiw limg be- 

the deponent cannot recoiled; r That ^'^''^rl^^^ 
le deponent^s father gmttg him tibeab-83> 
t it contained an article of cfhai^e m- 
nfit the deponent's father, tirfaidi ought 
lade against the company: lHatthie 
not recollect of having taken ariy pro- 
e matters as the chargd was a rtiere' 
he depoiient^ some time aftefvrards, 
lint back to his father; and the de- 
Vom Mr Gordon yesterday, nv'lio Was* 
he deponent's father's thistees : That 
ment received the account firom his' 
a memorandum upon the third page 
this account is now prbdiiced by the' 
subscribed by him, along with t^ie' 
as relative hereto: That, for some 
fore his father's death, the depotient 
lit of making out accounts for his Ik- 
s time the deponent's father had Be- 
it failed in his sight : Thbt one day 
ler was arranging some papers, atid 
onent what to do with them^ he c^nie 
ion an account due to James Nlsbet, 
ng it, he said was a long standing ac- 
;ht to have been paid before this time : 
nent thinks that this was the account 
produced, as relative hereto ; and lie 
luse liis father was owing nb other ac- 
S^isbet to the depoiient^s knowledge.: 
€st of the deponent's recollection, ttiis 
lade by his father two or tjiree nrionths 
th : That Uie deponent does not think 
Cc 



SM 



DSGIBiGirS' OF THE 



N. 



83. 



^^W^' tl»t«tjr pert of tUs aflcixint has been paid I 
«Mbet*»Tnifi.^ depraa»tf8i father's trastees^ as the deponent thii 
^vTi^SS:' »rP»^*<rf it had been »ettied, he would have 

* of it: That tbere aire live trustees, three of \ 

* are a (luoram ; mid huainess is sometimes doi 

* diem witiiottt co^QSulting the deponent, who is 

* absait fBom home : That» under all the drain 
' ceit. the; depwextf; Is indmed to tlunk that t] 
' ctUQt id 8tiU unpaid; amd the deponent would 
' Ml olp^ectiiQft to saactirm payijient thereof as t 

* hja* father's tnustees. Interrogated for the in 

* of Mr Mctn?iao«» defenders : How he knows i\\i 

* account! hi^baf^ pcodueed formed a copartnery 
' by Messrjs, Winioa and Morrison to Mr Nisbet 

* pone9^ Thaifc he Inmw^ that the plaster-work \ 

* in dbwged was executed by Mr Nisbet for % 
^ Wintim and Morrison ; and that it was axeeul 
' the. i!^;ie of one hundcod giuneas each hoBse^j 

* the deponent heard his father speaking of this 

* gam with Mr Nisbet ; and the deponent thjnb 
<t his father's books will eat^lish the fact: Tha 

* oo^artoery between the deponent's father aii< 

* ItfCMrxtscin was dissolved diving the deponent's fa 
^ life.; but it was in aiyfetaiice at the time whei 

* houses in Abererombf Place were plastered, as 3 
' deponed to: Tha^ the oowpany's debts, and als 

* tradesmen, weue oecasionally paid by one 
' partiwi!s» and o^casp^aall^ by the other : Tbi 
' d^ioB«tt's:fathar4ied'twa'yem's past last Oct 

* or Noveinbej;.' ?# ?r. 
Wintom and: the! otih^ tnistees of his father, 

thisoati) was^ emitttnly ts^tesed no appearance i 
a«tioft. teat admiWed tfcejwtiie of the debt, ar 
fer^dftO'pay the 4ecaaaed?s pro portion of two4l 
kaviog the punuera to p^octed for the reuia 
agaiaat.Miornwn's trAsteesu ( «^'*t^|. 



fknmf itffotimi tUoii *» depose 6ff ^ ''>" i<^^^ 

A ^ tbtt bocfts of tbd MMi«rfliB*if ^' ;; >*"<^"' 
k» Wiatim itid M^rriMM^ itt whldt . — . 
Iriw wcM ftMtid iKdogmpb «f 'die £m^ s/^^T^t^^. 



Piid to Mr NiMWt, tV MSMiflt, jdMHt-: 
ing f<0ar MtgingSi L.40 (> d 



ceUM^ 


<• ' 


90 








do. 


do. 


to 





6 


de. 


do. 


20 








dtf. 


de. 


10 





6 


do. 


do. 


10 





b 


do. 


do. 


10 









.I9tf, tlK MM for #taicH eraMt wni 
>nnt liMM. 

istees treMHOt Axflmriined upon iMth ; 
w, one of tbair tiianlber^ idinsg' ht 
agait fdi^ tlM ^lkiM*s, med^ a jiidii 
^hat na iMtiey kild bMta pbklj, i^ti^f 
of hi^ tii-tru^eed^ on^ ii66<Hutt of Mi^ 

6 argued^ in cMWy te> WlMh-^ 

p/^adMUJTM; the eo*s«ltaticm ^ 
Bcientlf pNffit flg«ftM't^ Mtn|iMff; 
1 of Wifitofii jnorior, tte Mn arid rei 
one of ijtm ptfitn^orii Utot the ad^ 
artneriAs HBflklkllit to MlDMl t!he toiti^ 
lute a 4dbt^ afilfaMit if } Iffltf tUat/ efifftii 
idfni^ioa elf' hiH' 1^^ rcffiP^sMtitltv^ 

Cc2 



D18GIWC1NS OF THKCi 



Ni 



^y-'^ ^ which pWTOd both ihe constitution of the deb 
ijighg^BSijM^!'^'^™^^ and that the sum had 

^**^^^?^been partially extinguished during the subsisten 

the copartnery- That the acknowledgment of 

STjSSkii. -^^^^ gttUWri pTOTed that the balance was re 
8». i^mjbgnt the time of his father's death (which 

poeierior to that of Morrison) and that the w 
akm of t^ ti7U9t«eB proved that it had not been 
by tbem subaeqnent to that event. Finally, th; 
the circumstaaces of this case, it was compete: 
proi^e resting owing by the oaths of his trus 
Mutray t^. Lawrie*s Trustees, 2d Mardi 1827; J 
!»« Townof Breehin, 15th Nov. 1808; Bronghi 
WettoQ^ 24th F^b. 1826 ; and Stewart n, Stewar 
©ec^l82S. 

' The defenders atuwered—lst^ That the evi 
«f jQeorge Winton^ junior, was inadmissible a| 
the estate of Morrison, in respect of his in 
kl-the iawie to lay a share of a debt for whi< 
ludoiQirtedged his. liahility upon that estate 9 < 
r^y.4^.La^irie> trustees, 2d March 1827, wher 
tf ft^renee to the oath of the trustee having an 
eat was |>ot ullowed. ^dly. It is incoinpetent to 
the aubfiistenee of a prescribed debt by the oath 
trustee, .as all questions as to the effect of the 
weore reserved by the judgment in Murray v. Li 
H March 1827, (Fac. Coll. p. 299). Srf/y, 
Siiippo^gt^tit were competent, and that the d^ 
tiQn;(tfiCI)Sorger Winton were admissible agains 
Wtik^of M[Orri«)n, it does not prove the si 
Mll0i>of r thcf d^btj or that it was not paid eitli 
fWi.WwtCKn hiwelf,, «r by Morrison. 4///> Tl 
j^if«^(jfl tiWB .bocAft d(0^ not prove the constitiiti 
Ilif 4^tj<;w4»^^, the ml mission of a debt 
KfHM'ig^ilfifm 8iiti!|>ciing it had been admitt 



20XIRT OF SESSION. 



SB3 



imself) does not bind the other co-ob- ^^ ''^*'^' ***^- 
*oiild not rear up a preaarited claim ^^^^.^^^ 
ate of his partwr. / ; ^^' -^*'"^* 

Ordinary Issued the following note:— ^^^T^J^v 
'dinary has advised this case. ' He thinks ^^^ 
to observe that it is quite dilRerent from 
ch the Court have found, or where our 
ave laid down, that a debt miay be prov* 
5 to be resting owing, raei^ly by the 
n entry in them bearing the^ebt to have 
In all these cases the constitution of the 
d in the books. It was entered in them 
, in the present case, thereiifi Ho consti- 
bt by the books, either of tbe late Mr 
Jr Morrison^ In the book of the former 
[)f payments, amounting to. L.130 ; but 
ling from which any one can discover 
>ajTnents were to account of L.210, as 
>rice for plastering two houses. There 
k no charge for any sum whatever against 
Morrison-^the payments nmy be made 
f a debt of L.135, L,1000, or any other 
er, above or equal to L.1S0{ and, con- 
lothing can arise, or be presumed from 
of entries of payment. ' *j<ijn 

loubt true that the heir of Mt Winton 
^at he understood from his father, who 
: an agreement had been maide by Win- 
rrison with the late Mr NiAidt, to plas- 
jes for L>105 each; but it- appears to 
dinary that, in this case, the^th of the 
ate Mr Wintonj who was ndt fei jiartner 
is not to be considered to 'teal equal tA 
ath of Mr Winton himself, whto was th6 
I qiieBtion with the defend^f^; but is 



ftftl 



DmmOHBiOF THE 



^^l^j^'.tf^t to.be viewed as die oath of a witaess a 
Kj^Vq^AW. 1 ' tbenif ^ibUgBtogrjr, aq doufat, on Mr Winton b 
t^^Moirir* whQ haa honourably 4gi»ed to pay two-thirds 



tees, 



iS'to/. 1579, «. 
83. 



debt as remaining due, but not conclusive ev 

* Mifflii^t tlue da&iiders that the other third i 

* owing. It is impossiblie to say what the la 
f WMtm^ badJbe lieen alivfl, niight have said o 
^ exaiainationJilirtbedefendfis. Mr Winton, as 
' tee for Nisbet, might h^ve sworn that Morriijt 
' paid his sbai^e to him. 

' 2d^ A eompeaay debt is not a stronger ohli 
' on the oorpaitneis than an obligation consti in 
'.a bill gmnted by a numfa^ of acceptors. Eat: 
' gaot is as much (lound to the creditor as is eat 

* nar of a comimiy tq ita creditors. In short, 
' accepted by two or more is a company debt, 
f extant of the i|moant of the bill. It is an iu 
f Ue i^ligation, quoad ibe creditor. But it m 
y jfOvA^ that, afbear the feavs of pre^scriptioi 
' a]a{>sed» the admowbdgmeqt by one of the 
f 4fi(ffmU tbat he ba§ aot pi^d the debt, is u 
•* fioieot to elide the pvescnption as to the 

^ The ^aseof Alexander Bktir, Eaq, and that of 
'i^'« trustees* h^ wiMhiathe^ three year^, 

• iifPOf <rf tto; aAd> tb^refere, the Lord Ordinary 
f tains great double* thid;» ewn if Mr Winton h 
f hud hem aiiv^ a»4 emitted tfai^ oath thiit wa^ 
■! hyhi^ fiOPs. it wi^W h^ve been pro^f ^giuoiit i 
f pr^ntiU^^ i>f Mp Momam. The Lord Or^ 

• Muk» tk9^ the case of Stewart in not app 
' in.Wiy way to.thi^* That gentleman^ in his 
V]f^f9r|ied t9 theeenduci iof.a person who l^a< 
f .^plpyed 1^ pty th^e ddUta of Stewart, Can 
' mil^ Co«)paAy> bf whom. <m> such payment apj 
^to i|i#.ye b0(tOr Wfde^ ...J^i this case, no i^d 

• h^bfW^MMte.bari jy|r,nW«f41aw l© the coud 



I* ;l 



OURT OF SBSBIOW. 



9»S 



SiaL 1579, 9. 
83. 



* any other person. Vim liof^ OKJirta^^^j^^- 
iterent expense i^wtiCUM^h^tM, and|f{9t)er,<rru» 
not pronounce any jttlgwisnt wifKh^ ^*;^^®"^" 
ity, would cost a Tetliittifn'g nMe^ He tees. 

lies the parties to hftWtiwditWtjtttfg-p^^^^J^^ 
ourt on these caB^.* ' 
afterwards took the <SaQM «0 f^pbrt ; 
istained tlie delmce tit ^MMSri^dii. 

• expressed EOtnt *mWs J tttad Miai*- 
siispicion that this fleb* ii dtie. Thfe 
oks alone do not pfOi^ its cWStitutibn, 
;he employment of Sir Nlsbet at the 
id the question is, whether this, taken 
letter in 1816 to Mr Wihton, scttior, 
t then said to be fumislled hy Mr 
? — which account fe, I thihk, "ptoviA bjr 
dor's deposition to be the MMe it6W 
tt prove that the debt wad^Mmedfroti), 
>d by, Mr MorriHott bittiself, ill Hl^kih 
lence, both of thfe bodfes and df thfe 
> shew that it is ^till ttJStin^ oWitig. 
iir with the Lord Odinary itt think- 
much analogy betwe^ti tJie srittiatioli 

in a bill and the paHae^ of H t6M* 
bin is prescribei by the l^]<eiiirfal 
iltogfether destroyed as A floaimettt Of 
h of one of thi obligants inay, no 
Is proTe the existeiice Of a debtUgbMiK^ 
lever can have iSte effect of ftfeiatihg 
I against the other eo-olil)gants dn thfe 
se of a copartnery, (m the ediifi^ary, 
one partner biftds the eorn^nyv i^ti^ 
constitution of H Aebtr for vt^hicb Che 
r, and all the iilftifMiikl ^rtjtiet^, hr6 
e constitution of Aed^ iBlAltA |)rdv« 



zm 



])ElI£9SDNaiJ)F 7rJlfi> 



N 



»3. 



.r==r- tiiBtriiDiie dSiOieHiilnive paid Mt^imiid^tmting < 

dblit>bc'pito¥0d Ibgr the otlk itf onlf aa^ of the p 
) vTb^'tas^is.incKifioilbt^ nwterfadly ^ittttied wh€ 
in tlietjpitteiil uiBtmice^ we lltve otil^r the repre 
tiveilf one ^ofi the partners iMtead <tf himsdf ; h 
.tiMirh^>of a deeeiued pertiier de^ bii 

.ypinpapny bj bis admission. Bttt thep, in the p 
qase^ildiereds Uie rq^resei^tetive of^nts {>artner \ 
.tiBg' Ihiit'the; <^bt; hi stiU due ; and ||1 that is s 
-the nepceeeptativee of the other is,' ifot Ulat the < 
foid^^but that thfjr l^ow nothing about it. 

7 JLor^i^ iPrtei%,-^There are several points 
^seL^ s On the jftr«f, I agree with the Lord Ordii 
diMineniBfks^^/to the ontriee hi the books of ^ 
aDdiMar]ii9Qn. Tb?9e eiitries eanadt'^Hde the 
iprelicr(ptioo» beqause thejr do not pMv^ the cq 
.^wri of the deh|. Jf the boolcs had contained a 
lagatnstrWmton aad Morrfson in iavoiir of Nis 
jL;SlilO'fi>r the plaster work done in Abercromby 
?andv onitbe oliher httadi in di9cbarge,'hi(d only < 
iUm with L.180 on this predto aeconnt, the 

might hai^e €»|abliah«d tha^; the bidwce was 
.)firvting)jqr the absence of any entry tieaniig i 
vjiaidw' But here ftlUhat die entrieB in the book 
)jarcJpayiii«Qt« to Nisbet tothe amount df L.1S0 
i«aat,any thing to connect it ' with the paitiiail« 
.idkgeai]A.thei«s!N>ixDt pursued tor. 
yh&eobfifyf Asitpi thed^)09ition of Vh George 
>tiain^ rjumbrrJ nay pbeerve^ Iv^ T%t04f Wintc 
mthq Wiai!>a partn^ «^ tfie-cMnpany' dl Wintc 

ftlirrfaitai^/ had been «dive, and hai^depcte ih 

l^cttiwhfafe hisison iids done,Thfc< oath wont 



a'ltD<QP^^Si»8IC»Il 



li$l|.^(i4Qb|<ftg9fMh^fa«fthr{hiiti8cir(i^ ssS^i. i«2^i 

m^^&i fai4|ie Mitb>4^^flH> faiciD eAdqM - — 

ov ^rom the airinidii tiT lli«rl^fd:<0#d&^ 83, ' ^ 
IT liBtistly wtth Lond Gleoke^rthat 
toils di«tiiiction lidbraeiiTiiie ;Gttae of 
npanf^ whose adfiiisBidim bind the co- 
die iBefiftbeffs of tt» wid OMsUiigaaXB 
admieirioas on an; oatihi tof nSarenet 
I oilier* This 4ippeai:is^ to be > tthe im^ 
Bsmitin theleaee of 8ke«^airbi?jSltifpirt, 
Aad is coaneten* withiteo^ and), bc^ 
tkm is, not whether the^ iteht iba^dne 
en aad b)r Thosias Mopirison indivir 
-dMigattts, but wheihecdt be due^hjr 
WJatoQ and Jtfomson^ whidi is held 
q[Murate person; or a soi^ df firtithatt 
9ath ^f the partvers^ especifltUjr: vi^ma 
pr^jss the debt a^nat the optDpanf , 
fiegt distiiicltioiii between this sttnaAton 
£ifM>endi 4n a bilU The latter, ate 
^a^ymietlf and >8eTeri^» but eatfa ds 
if to thefuU aoiount of the bill ; .and 
paitjr or separate person, Uke the oonif 
eaehof theeprresbeeomeS'boittidii 1 90 
nweiiw, fUl^i ThatiWitttdn,. janiw^Jthe 
tivis ia a totalljdifialrent shaatioKiirani 
^»lf« : He canaet bind^lhe ;finn,!SEn4 
one of his fethlorls^tsiistees, and/tfa^re- 
hm4 >: flEhis sitilatiea gives theccedi* 
I M refnrf to/ hiaiOath^> ta i sa fiur ) a»4be 
h}s!};&tiKa* ib Qonoeniedc: This pdiat 
E) dedifiiO&iiB Murray c.^fAwrie^triis* 
i 1887 VnahdJrtrastheii^ afad still re- 



" 



I'.i 



■ J'' 







.'I 



: • I 




«88 



JfgSmsmBOF THE 



m 



tees 

80X1^ 



PrfiMCTiptiOTl, 

HtaL 1579, C 
(j3. 



Ni9bet^8Trui.^nipeteBliy''iindsit^.tfae>ofttb teb 

;?^^^^- truftt^stiitfiik the «Uisged debtor.. 2^b^ikiti<» 

9fter«i9i«b)0ettle^ The jtnistee majr^ ptehaps^ 
mtanoe^ be «ble to depone that h^^ 
whole estate and baa paid the debt. Jm anekii 
may aay that lie knows the daim to bedui^M 
it has not been paid, la anoh .ca8eB5 the toatii n 
cscmoltmrpe for or against the claio3» In other 
tlie trustee may answer^ that ha knows nothiiig 
the matter* All ^aat I at present mamtsia h 
Huch a refecenoe is coinpetent> merring: alwaj 
^fuestieoQ upon the isiport of th^ 01^ ; and thi 
all thkt was deddeil in the case of Miurmyj I 
present case, the oath of Wiatcm, josiorr appeei 
IB£ to be ieoB^dushre as against the estate of hu i 
on which he is trustee. But I think, on the 
h«Kl» it is equally dear, that it is of no Talae sti 
against Morrison's estate. Whatever^ suapicip: 
presumptions it may give rise to, in point of fi 
giFss no tegal proof, under the statute, ^ the si 
teace of the debt. 

indeed, in so fisu* as the estate of Marxiaan h 
eemed, the deposition of Winton, junior^ isiial 
the objeotion of interest* As he admits the;ddl 
so^ far as his listher's trust estate is eoneemed^flu 
IcRst is to fix a share of it on Morrison'sieatatoi 
thwekxe, he cannot be eocamiistd to tiie tlTectiOi 
Jecting it. In the case already referred to, of Mi 
r. Lawrie's Trustees, the Court refused to &1|6# 
ference to the 0atb of a trustee (Thomas lamm) 
had an interest adrorse to that of the trust es 
whilst the refbrence to the other trustees was 
tained* 



Tmn?i&w^mmmfi 



389 



r^ thenfiire, I am for ^iistaiaiBg the ^^^J^^ 
riptioii for Mornson's tviisieea^ . mabeVB Tms- 

des do not establish the fX)|istitiitii»ii\Qf *^-77- 

mihe oath of George Wmtsmk jurnKf s!^!7m9^ 

restang owii^ against his father ; for^^ 

\ for wj thi|^ ^$$ appews in his 

^ been paid, father by has father be- 

t by li(Iorri9Q9 tb? ol^r partner. I 

er> that his oath cannot affect the es* 

14 for 0^ riforeMecan be loade^^l^ the 

who has no iiit^iest ^ai the matteF at 

it ground I dj^meited foi^n tb^ judgr 

I of Mivtr$f 9» ]!#awrie% Tn|8teei» ; and 

lifrurt hud not y«( found what effect is 

le oatii of th# tfustats, 

^Miffi^CMf fsmsiv^^A with Lord Pit^ 

f added<— -I do not dlaseni from any 
rinciples mentioned by Lord Pltmilly ; 
X agvae w|tb tkwi entirely. I^^nijf 
IwbtB of iheb? application to the prc^ 
ubt wb^tbar die entries in the bode 
acoauut do not oatablish tkf .esistenca 
b HiMr tb# same description of work aa 
nd^> again. iFbatb^r the amount of itia 
aae^rtaiQdd by the latter andaceouat 
^i whicb* I i^9k, ia prored by the de« 
baiito ba tbc^awieasthatnow Uheliedi 

.. ■ t • > 

ingfetie. Act. ^'eay. Small Keir. Alt. 

John Youngj W. S. and Gibson^Crdigs 

19^13. Agents. > 7. €klt. - 



'j }■-. 



%T I'JiU > 



U. 





1 ■ -' 



- ? 

t 1-,; 



r'''"' ;;"•. 



/ri 



90a 



jmomim»iOF tbs 



* ; '■V»',"n 



i^ ;,},- 



t imBSTJDIFISIOM 

fifoi LII. ' - ^ 4 • 88 Jjmfkwiy 

VIM -v/ . . /: ..■..'.. ...... ; . . . ...; ; r ,.. . ., .;, 

JAMBS SO^WART AND HIS GU&I^EQi 
' iigainst . i . 

^ ' JAMES BAIK^ AND OtTHEMl i 




TirrOR AND GUBA-^B. — >PrO€£8A.-«-1. jt gift 

' ^ tbry^infetcmr eflkree indhiduaigi ttppotfUiifi 
tuUnrs^tive, does notJbU hy the d^atki)^ 
ibem^ ^mken the-tgapomimeHt W neither tortbm 

' Ijfi nor a quer§m mmtianed. 3. Ckm^mHm 
fvhich apartyjhund to he htmPed Jham ol^ 
a judicial report^ u»not exhamsHng .^tf 
hmej undto the opinicm tf the amsnltfdJuiDi 
r^irenee thereto. t^t^i 

Ixi 1814/a gift of tutttiy, in iheidlowiiig taan) 
obUhKd'ffoin the Court of ExtAi^qaw ijki ftk 
Mrs Marion Stewart (the pureUerV BiQtiu^r),,^ 
Strong*, and Alei^nndef Steventon ^^-^ NO0 lim 

* eonstkuimus, et ordlnarnna, dlktste^noatvos^J 
'^tram Marionam Sfewart» Theidam<Stfioiig#iet 

* atidrumSterenson, ttitotes'datJr?«M3«diQtii JaeoM 
' itt,' aoadmiaistratores ommum ti^ shigiilinu 

* va^ntitt. suiiruBi^ l^eFeditatuHii vpoalteeimiim^ 
'^riimque bmtiitim indbiliom et iimnobid^ttBt^f^ 
^ f$i»iiiqi;itiinibn :»t^tem perv<eneritt pnimtfilt 
' quod diet. JfagTStra MaiMaia8»<;8l4M]llir M 
^TgtMBgi^'et AleKandeirStet^ioAj: fm^oA «litp 
Vffteaikts daetO'^Iaatobo ^^ryraitiOBiiij^neliriiingidii 
^MtatordHtLvuB/de Jiire,.<fiBiir regtdlm^tiA^gmmfeM 



QRT OF gESSKMiU 



a«k 



I pervenerit, sibi et propinquioribus ^ ^v^' ^ > 
lictis ten-is, flrmls reditibtis, et bonis gtewari, &«. 
mn et ratiocinhi^\ife«at/ ^- ^^a^&<^- 

lution, in which Mr Balkle, the de^ Tutor and ca- 
jbligant, was in these terms jryp WA^pJ^ss, 
, to be boutid and obliged, as we the 
a Stewart, othor^detBt»t)rtgVTW)mas 
J xander Stevenson, as principals, and 
Baikie a» cautioiocurf'^tid^ebd oblige 
metly and severally, and our heirs^ 
Hiceessors, to inafee just amnt^rrack'-l' 
dent to the said ^i^l)*lviief|;i he^sbllU 
the age prest'ribed^by kiw,>f ailvto--. 
iBsions, coinmissians^^iaid acfts.cKf \aia-> 
by us the said tntoirs^ uadcTsor by 

id gift; A . ,.v. .^ ; .V; 

appointed entered ilpan the maiiage- 
i's ]iroperty — Mr Stevenson befngp^iip-i 
id Mr A. Scott, W.S^ falivingi beioome 



trong, one of this eiyratorel,«di«dj ^ Id) 
presented a petition to tile Courfejofi 
ing to be relieved of hts cauftkharj^t 
he afterwards bro^ugfat adi acfciono^ 
re the Court of Session^ ccmcludkigitcr 
lat his liability for thalntEciniisskms^ 
[ ceased at the deat^l^thrBaidiTfao^ 
which event, it wa» ;CcmtoQdad„)t]ie^ 
L The defenee <rf fiaioUhi pmidewt 
bar of tliis actioa^ MniBaikieiqp^cd' 
or leave to tritIidraa;(rf{faiflibfai«/f|M 
was accordingly igiwitifl, Juilj brnjp ^ 
Q, Mrs Marioa fitevxUt^ f Afa^noAli'^ 
representatives o6v>Tiu)DSafiij 8tee;^,« 
and his tutDr9'iiij^)eBnlzHliiijtBte' 
[ersi Defences weatiqdddg^ fQB^M3li9< 
rxander Stevenson, denying that the 



30 



MEClSfCWSOF THE 



rator. 
Process. 



^^^^^ ttttoiyhttaAfflt^nbyih^ Tl 

Rtenrirt, &c OMiiJary (OHiigielfe) S«ftb Mtj^, .» the d 

t. BiiJr{^&<j. and found itet thfe^ tetoiy had AHen by the d 
Tatar and Cu. the ^fd l^ioitiag Btrong in 1^80^; JMfcd, thereaft 
Jbly) his Lotdsbfp pranotiirced d d^ree of 6? 
tfoit ifr favour of the defender, Mt Baikie. 

In Febi*ui^ IStff, the Jiursatf attained t 
df puberty, and afpf^nted his niotfaer, Mrs ] 
Stewaft^aiidlMr Stewwt, m^fthant in Leitfa, hi 
tors; and, inf June 1886, he; with their o 
brought the present m^tfn of fiedrntfon and d 
tor, which is directed agiiiasttiie daCmder Mr J 
a^ii^srt the surVivifig tfttom (StMmrt and i 
sou), aiid likewise dgainvt StoiWHion's tnisti 
having become baiikrupt,) and agsitiit the el 
of Mr Strong. An action of consiitution wi 
brought agiainst Mt S<^9t«^ the canCioaer for Stai 
under the fiictoiy. The fbrsier aetiM sets forth, 
" the pursuer's pupillarity terminated upon tb^ 

* February 1825, when, in conse^ence,. the g 

* tutory fell ; ^ud the pursuer tiMvefltfter made i 

* of his said ctofators, whose eleetton was after 
' approved of by the Court t)f Sessh>n upon the 1 

* June last. That the said tutovs, or one or oth 
' them, have been intromttters to ahtfgeamuunt 
' the estnte and effects of the putsuer^ while be 

* under the age of pUpiHaj^ity, and there is still a 
' consideraMe balaM^e^due bjr tdbnr unaccouotd 
*^ That, for sueb halttie^ iMt oBly the said tutor?^ I 

* sdT^fi^^md t^ilr re]ff«8e«t0thle84inf^«ble, buttkc 
' Jam^ Boifele i#^l80ilflibier» tfattt eautioaer, 

* by reason ofhis^ Hlaving bMrndtteself, emjm 
*'and sevefe]f^/il€iiigt9Eith:them.mgi^ bond: 1 

* with'a view^geOting^free firoBr.tbe^obligaiJose 
' tattdev B/y tfftA^ boiid, thid sind Jain^ 
' Bc%i6tk a« hfs! i^sHMfe btiloim the Lofeda of Our Co 
' ciland 8essi6n against thi' pui^uer white a pn 



«JRt OF SfSmiOii. 



S0» 



tbi teid ThoMaa Sttw^ft cm?^ of th^'^- ^•^'^^^^ ^• 

\»mkAttj^\iyt3^ saad Jaipes Bailee, ^^^ 

rffedtm eaid to hat^e been obtamed ; 
M^ THaa pifoiiptiinced While the pulr- 
' the age of pupiUarit; ;. aiud* as it ia 
ti^greal hurt and prejudice^ it must 
Kfesed by the culpaUd negltig^nce of 
inst the ocoaequeacea of whidbi the 
r entitled to be repotied.' Aj^ it 
tad«^3ee ao obtained «»U9l|t fo be re- 
toimi cdakiiefly that it is coBtr^y to^ 
IS i* iadsy that the said gift .of tutory 
ISWi^hythe daaih of Thomas 8tr«g^ 
»n, ^nd . also in so far as^ it fixk^^ 
atioM eome uade^ by the s^ bwd 
« at «& and by reason of Mx Str^pg's 
Ft aad bond both remained in fj^U 
iJHidiflg tb^ event^^the gift» till the 
d the age of puberty — and the. bondy 
intromissions had by the tutors, in 
^ aie fully accounted for and paid* 



Qx^eatioThit impleaded'^ 
fttoty £ram the Baron» of Ejoeheqiieit 
het whole qiaee and yeais of a minpr'a 
immr.ofilthMe diffieprent indiidduals, 
Li*ii()cir»4atim^ ^oes; not fall by the 
hemkynhtn the i^ipoiatment^ aia in 
nda, I tieVBoi^ thoni^ ji^iBtiyn *Qd n^i 
muhiJatHm ^ft^ Oik ^the ooi^ti^airy^ 
lia^ldutfiig/ Ite whoW pe^i^ of the 
ty>(f-and th#^ surviving tutors may le- 





M 



HKi 



4^ 



]imxBHi0?fl<i>HiraiE> 



^ttifaiu II 



Tatar, 
ProceUi 



Aci ittg tlW(d«t]iri[)f ^aof fteitlrt*ai]iiu||tai]iM«lb 

^^ iSitotri B< ii tit 6i.'^jl^4^mnln BniAikcA^' 

Tv^N'c.Mf ««. HiorMil. B. i. tit. 7, $ l^^SO, p. 168 ; Maekema^ 
t>art i. Ut. 7. p. tS ; Yttbaag «i-Wat8iM)«Kl&fi|n 

Duncan SkUim^i 91|eir Tiildn!«ttdi<lwiftlDMft«j 
17il8» /Mir. :i6i&&I/ ( ' SUM' «. 6(|MlfaDql|lli 

len* (3£^,^^ms9&) • • • . •. > .;..iix,:avi .& 

; n. Th6;bdnd>bf dnrtttniUQBn V'dbMlOotfRii 
d(e^pMiVi<w]lMft^^g^ of ttttorjr i» gttaiittikyit 41*' 
tionoeiTAd <v«d<^jk9' bind -tketMtqn and tIiiiB'4»«l| 
conjunctly attd seTemllyi *ta^ai<A» jii^«oniitefl 
iBg<tuM||)^rtti«aif< to tbe'pupil^vlumiiMidftU 
M tl^a9^<p»Mdriiked bj^lai^^ «| <fr J>W i M 
oiBJ8UQat»^<co|nraisstonsradd iwl9 ofiWMia^ttMl] 
ky^etAlwra under and fi^ viitiui ofotiMtififtn 
bond executed) b^ <tlie deSmd^^ MrBaifcye&^ftttin 
jn these tenner ftnd^ bring ,a» bootubtokflfid 
iiH^ intcomiflsiQiM of tito tufoinw 4«(Wtf ^AlMto 
y<»rsof the |iiftc8ueiif6.pupiU»n^«r9Mt]^i|lxittx 
Btapdin^Jl^ Strong, OBfto£ the lHt««»<dieA{i*Mti 

pWTHld*- '.■ ■•■ -• ■ . ; •r;':v;vH}q«! 

m.'1^ d^fendte^ Mr Bi^fcte^ )b4iBg.jbwKi4 
jiinctly and severally, by the terms of huinliqmW 
not haT« beea released f nmi this qbSgiMiint A 
ttndertakeB, unless an^^lkfdjoahad ^ba^i^ 
the Court «f Exchequer for a recal (tf the gift) 
new i^pointtn^t of tutors^ arid for sc v^arrant 
i^i tbe-kmi 'i»f ea6ttaifc 9i|i» iqeMid^iilkjMl 

wlthdm^ 'ft>j)^ti9»>pi)fa«fft(4(ibi(rtiUi^di^^ 
January 1828, which prayed to^ilflim'(fkoi>iilli 
tionary o^iMgntimi. |.<i^>8Bw. tiw p wfiir » nifnti wi in 



jvRTM&wMmsmfm 



i$»5 



raior. 



t, that tii0i|)iA!ciMiQiMjiitlUl ^fbw^, ^^^^' 
the deftthsofi teiaiof t«htfJl»toM} 1^t^Z2^ 
:ad to m.^t |il^a Ab \ tl .^\u\?. •-«^M^ 

fence— i gj-:.-t / :: S'V .\\ ,T Jii .1 .ib^l 

^Judieatuhai ihe pl^itetntibaisfe/ii. i uU 
the poiiitopei^ ibtiideCHdEf lFa^w«Jl 
the gia of tutOlyHMtite,ill^iaTaItt^ldf 
i togetii€f, esBBot be hildi^gift in 
' them, b«t ftll^ ^fmjm^axpmi Ur 
The opposite iiile«'«|i|)tk8>toitiiton 

mder cpimotbe liaUefor 4utf intr^ou 
n hy tWttftors^ dt Siuy p( tbexu^pUt^ 
linatioA of the Mtogyy^iidiBvemiSm 
8 had bjrthem dcBciaif its fobftistim^ill 
the beaefit of diaciedioiii « ' t 

ider is not liable for the iOtitoBilBMot)! 
lated hy the tuton, whd^HvM aoltelit 
8 ai^intmmit, and ti4io foiind a^Mlll- 
Ltromisaiow wlio is StiK so(v|irt| tfttA 
^Dt as factor^ at the time, was injsrirf 
[ faithfal and prop^ d^dmiifisttaiiofi 

I that the CoiUrt of Exci^iier arbthe 
r the legal effect and impert^of thidir 



linary ordered Cittes, in 4MiMr4e( i^ 
and the <3dttrW befiwwB^a dlMi H g th^ 
the pldaMlihg» fO^tbe doiMdeMfad^ 
eeond BIHid0ft#«B<of^^t]initt«^ 
% togiW^irof^eftupM laife^^umi 
the U^MI^<^im^^^tt»Aenb^^iih^ 

Judges iiftatodtke KUofiri^ iDMe'V-^ 
Dd 



m 



DECWIONS OF THE 



Nb. 



15Jmn.l829« 



Stewaity &C. 
«b Baikie, &c 



Tis£ ^usuUed Judges, beftnne'giTiiig aa opium 

die ^(fstioB wbinUted to them in ikteo^^B^ 

V, Stewart and otfeera^ are desirouB <^ obtasninj 

Twtor and cu.^ formation witb regard to the practice of the C 

* of Exchequer, both as to the partkijdar^ tc^m 
' wbieh gifte of tutoiy have been granted, where i 

* than one person Is nominated, and whe(}ier, ^ 
^ a x^nrality have beeii appointed, apiflicationfi for 
^ appointments have been mad^ in eonseqne^ 

* death or fAket IncapacHy. 
' The eonsultdd Jndges, ttiererore» widi, that tb 

^ cessary order should be made by the First IMvi 

' to obtain a report from the King's. Remembfan< 

The Couirt prOMuneed the following cnrder >^ 

June 1888) ^ The Lords having considered the a 

* note, remit: to Sir Henry Jardine, the King^n 
f mendlNraiicdr in Ejcchequer, and request of Ui 

* make a return or report thereupon with his eai 
^ conveni^cy/ 

The King's Remembranoer made the folkmin^ 
*um>-** There was laid bef(»^ the King's Ren 

* bralieer a remit from the Court of Session, req 
^ ing him to inake n return, or report on a note, 

* regard to the practice of the Court of Excbe^ 

* both as to the particular terms in which gifts o 
'^ tory hav^ been granted, where more than one pc 
^ is nominated, and whether, where « plurality 

* been appointed, applications for new appoiiitn 
' h^ve been made, in consequence of de9th orij/Qm 

* cecity*' . ; J 

* The Remembrancer begs to observo r , 

' 1. That tiitory*4latives and curatoryxdatives^ ^n 

* more than one pesson aa nominated^ generally, 

* not always, specify a quorum j amd it isr thefpiw 

* wb^ the muDber of the quorum is reduced by-di 

* to apply for a new gift. An instance of this i 
' took plaipe in thfc y«^ l«aC. Riu the rewwte itf 



1 » « 



COURT OF SESSION. 



S9^ 



II m far as I can discover, do not afford any 23«raji. 1029. 
S where a gift of tutory granted to more sttTXI^ 
tlian one, and where, by the terras of the 'nft, ^ li^Ji^ie, a,c. 
iination is neither jointly, nor to a quorum, Tur^^ Cu. 
tarons having been applied to for a reneXTcd '''^*^' 
consequence of the incapacity or death of one 

of the tutors first named, 
here a gift Is granted to two persons jointly, 
? of them dies, or refuses to act, or in tlie 

a lady afterwanls marrying, by which she 
\ in law incapacitated, a new gift becomes 
y, and would be granted upon the tutors ob- 
the rules and directions of the statute 28th 
72. A case of this last kind took place in 
iiday term last/ 

tiuTfi, without being formally i*emitted by the 
3 lodged in the boxes of the consulted Judges ; 



lowing opinion was returned by Lord Core- 

of opinion that the tutory-dative did not 
he death of Mr Strong. The authority of 
ir and Lord Banktonupon the subject is ex- 
nd the return of the King's Remembrancer 
> be sufficient evidence that that authority 
I uniformly acted upon.' 
opinion, the Lords Justi€€'Ctefl% Gk^ilee, 
Ailoway^ Meadoivhank, 3Iackenzie, AW- 
ledwyn concurred. 

nion of Lord Cringletie was in these terms : 
fjuence of the practice, as reported by the 
fficer of the Exchequer, I am also of opinion 
tutory did not fall by the death of Mr 



lie ciise came to be advised w^ith these opi- 
Dd 2 




! '!• 



mp 



DEOHKXiS %^ ITRC 



V 



rolor. 



9S Jin. lii^ iiiQB^^ it >w» objectea fdrrMr fleM^t^iaiat Ae ta 
StewuC^ thQaremitiiiade to the King^/RemembralMeit tec 
«. Bailde* ^c-sufficttody btoid tobringoilt the practk^^of the 
7««or «fi4 Cm- of £23sfeuequery;a^ to the ter^ 

ia diffeisent laroamstaBces, were ei^gonsseik ; ^ aqi 
ioL ODineqiijenee of thifl^ the retem raadb by. the. 
Remembrancer, although aecurate:80;£Eff las: it 
wasrin thi6 respect, imperfect; andkwat «ddk» 
aa this return; had not been eompcteii^ iaidwi 
the dmsulted Judges hy a formal remit firona the < 
it was competent for their Lotdships to maloBi 
remit to the ) Remembraneer, by which these icm 
might be rectified. 




Upon this point ^ Court at first thought thai 
was smnedifficultj in point of form. It was obi 
howevw, by the Lord President^ that the opini 
tiie consulted Judges, with the exception cf 
Cdngletie, did not proceed upon the practice, bi 
rested Upon the auth<»ity d Losd -Stair aad 
Bankton ; and it was only said, that the retum 
King^s Bemembrancer proved diat that ftuAorii 
been uniformly acted upon. His Lordsh^ jfinlU 
ed, ia reference to tlie allied irwegcAarityia^th 
menbvasicer'sietunt not being formalljr remitttd 
Second DiFision, that it was con^tent ibr the « 
ed Judges to httve informed themsellree arterthi 
^kt jii the Oourt of Exchequer, in any ymtf 
thou^iproper, even by going to ^tfai^ Court ) 
aelyesy without Hod necessity of a^ xvmit^raiD 
Cop^;i an^ if th^^faad done so, their cpinteii 
potha^e t>eenr«fh{jected to on thisigrouiid^ >t B 
dmipavtite here had ban^> Aemaelirea fttei^^ 
any rach ol]t|ectk». l%ey wersi>tfitdlyi«i#ac^i 
m^hurevaf the report by the iReifctMibiKinM<^ 
idthmi^ Hat' caite had bctitt "ft^equently bbfin 
.Courts it htd nevtr bnnh^^hif^^dbjwM «6 m 



OBKTWP^SEBBKJSl ^ 



999 



BiSbnj^fMi il&nd^ Ore bUje^oti; ttuert^ s^Jf^n ift^ 

nAiriie listfoied UL^ ' In 'tits ' <^wo» steXrt &f ' 

i^my add t£(»^tf candBrrea.; ' On taie«-JBa^'«« ^k 

uti? Craigie thougbt that^ aa tke case ^ww o - 

iwre^ it wa» necessarjr to attend atrict^*""^- 

i^rwise the case migbt bempittod on 

inregulariiy*. 

trooonnced the following inteHocutort 

xur vepoii of Lord Newton, and ha?ii^ 

iitoidly' revised cables for the parties, and 

\k die lodges of the SecondIM visioBy and 

t Lords Ordinary, and heard counsel for 

I the objection stated by the defenders, 

rt of the Remembrancer, although ac- 

r as it goes, is not cbmplefe: Find, 

tth March 18S8^ this I^visoon^ on ad« 

for the parties, remitted the same to 

the Second Division and permanent 
fj to give their c^inion *^ whether the 
lis case, fdl by the death of Mr Strongs 
in the said answer quam primum :*^ 
le consolted Judges, before answering 
Bticnif desired that this Divsncm should 
isaiy orders to obtain a rqaort from tke 
nbraneer in Ehodhequer as to the prao^ 
ases : Find that this Diviaioli, on Tth 
did remit to Hie Bemembrancer akN 
rind that, on 11th JmiB 182% the 
V madr his report; Find^thafc jdds 
printed and boxed t6 aU' the Jad^ 
oil iiFind thatJl this teix)^!^ ^beil)|^< < a 

rsqu&titicm ^ itbe cABauHed Jnd^i 
lit properly became matter fun ^^tbefr 
[ iimder. ;ihe odginai remit . bj^ tlna 
Utfe^asnA»7and^ti|at ndtniBW ester 
a'3Sj^0Qtewy*:) jtoi};0fitilile thfc oiippraltidd 
i^(rtdtlMtcte*Amd tii8vrer>i(he'questisfn 




IV' 

* '■ 
* . 






.*.-• 




4oa 



VSCIBfONS OF THB 



N( 



93 J«n. I«30. 

Btewurf, fte. 
V. Baikie, &#. 

Tuiorn^Cih' 



jmltathesM^ns^vemit: Find that the said r 
bjr tiie RemembJcvDcer was printed^ boxed, 
amoved in Courty Jiearly three weeks before th 
of ths^t Session^^aBdy thereforet when eaid r 
was moved in Coort, and still more before the < 
rose, the parties had opportunity and tune ta c 
to it as either imperfect or inaccurate : Find 
the case was put ottt-in the printed rolls on the 
first days of the long vacation iu July 1828, to b 
vised cm th^ 10th December 1828> along wit 
opinions of the consuHed Judges expected to be 
in : Find that the case accordingly was calU 
10th DecemheiF, but the opinions not having 
in> it waa delayed : Find that on thig occasioi 
partieifi had another ojq>ort unity to have object 
the Remembrancer's report : Find that the cas€ 
again, put out in the roll to be advised on 
January 1839 ; but was again delayed* a 
opinions had been givBn in except by Lord I 
house: Find that, at moring the case on 
13th January, the; parties had anothex opp 
nity of objecting to said report of the Rei 
brancer : Therefore, ikui that they cannot no 
heard to object to said report, or to the nianD 
which it was brought before the consulted Ju 
and considered by them ; and having resumed 
sideration of U»e caa^ with the opinions of the 
suited Judges^ find^ in terms of the opinion o: 
niftlPrity, that the tutory in quefition did no 
by the death; of Mr Strong ; and decern in th 
ductioti accordingly; and appoint the parties t 
hate on thej^oikseijuences to follow from thisji 
Itoent/ . 



^ Xlfpu t^e, jpqjuit o^ law, whether tltt tutory 
fallen by the death of Mr Strong — Lord Gillies 
^d that he concurred in the opinion of the cons 



UURT OF SESSIOat 



401 



le Lords Premdent, Gra^sir, and Bah ^^ ^^*"* Jfl^** 
tat the tutory had fdleiiLbgr^tSkis event : ^t^^^^X^. 
eiice of the iinanimousiii|iiirion which *'* ^*^i^ 
tj7 the consulted Judgm^miii by which mtm- and cn* 
[ to be decided, theii? Ldr^ahipa did'^'^''"*' 
r opinion at length,* ^^y i 



linaiy- For Purfiuor, ^SnH^^^n^ fMopc) 

ton. W. Howkon^ Agent For Mr 

e, RufJierford. Ph hi * Pitcaim, W. S. 

For Mr Scott, Dmn ofFcic. (MmcrcW) 

~i 4lji>l 

\Ang^ I^rd €mlg!e observed^TlNii in tt# cas<? of 
^t the tutors could not Aut^orjzedly act in virtue of 
cautioners of the factors employed hy them couJd 
specially nfter intimiitlon b^ tke ^utioneti to thai 
incapacItT of the tutors arose firotn thi^ pupil baTlng 
rom bis death> or from, the pfnticiilar tenor of the 
f the iriends of the pupil, who had applied fur the 
e piipil hiniseir after majority, or rf <bt Beit beir 
leath^ to mk^nrupt the umpBgeawenl, if thej were 
►ersona who had been tutora should continue to act 
proprietor for the time i bat SA this manner tfeej 
vIve the obligation of the oaiitillBer.' Tkat \km a}}- 
was not^ in the orJinarj si^nse of the wordi^ a joint 
t of tutors ; it was the appointment of three indlvi- 
perfcirm the requisite duty $ and, in alt flttch cases, 
eculiBT confidence was implied, no one or, more of 
rom the reiiU Such was the rulefis to ai^biter?, and 
nissioners of all sort*, whether public or private, 
ct-'ptlon, in the ease of testomcirtarf tuloi^ in thia 
^pects, served onJj to strengthen tl^a. gef ^iral rule* 
Stair, which had been repeated hjr Lord Bank ton, 
upon a supposed analogy beiKt^n tul4rs testameTi- 
, WS3 thought lo be erroneoua; aftft If m#hl£ upon 
urt of Exchequer,, and suppoa^ig it to be the same 
Aj applj where the glfls had been madefn the or- 
onim or surrii'orBhip specified' in 4li6 g^Q^ while 
eterrcd to related to the liability of tutors, nrho had 
ty, and others had been erroneously reported ^ as 
Watson, Kilk. compared with thie repoit given by 
ly, irere governed bj specialtiea vkkh 'do Hot oc^ur 

Jl .a - ^ 
. t ' » 



mt 



i^&mimi&ion'vwi 



N( 



ilk8l jjjbLM: 












»'r>r:>Tiii lOiUO .u^^.H!L i'.;r;in'^.tqo>^ fpf ban ISI 



24 January T 



GEORGE IRVINE akd MARGARET 
SHEPHERD '• "«*iin; 
''■■■." agtthut 

DUNCAN M'LAREN. f 



1 



>^ 



ARitTSsTMrEi'r'r,-— PEKicmAL and Tuansmiss 
— The annuities payable to the widows of par 

' sekoolfna^ers, out of the fund established for 
relitfby statute 47 Geo. III. c 84i are iiabie 
arrested. 

Iltf t)ie 47th year <tf his late Majesty, an act was 
€18; eiititkid, • An Act ftwr raising and seeuriog a 

* Ibr th€ relief of widows and children of burgl 

* ^paroehial schoolmasters in Scotland.' The prov 
6f this statute are compulsory on all the schooling 
t^ whom it applies, who are &ereby obliged tc 
tf ibtite, in one or other of the clashes tlierein 
tS<Mied» to a fund about to be established for the 
pd^^^^tieemng «i anHoity to their widows, va 
n&^mbunt fh)m h.5 lo L.iS per'annam^ accord! 
Ih^ db^ to which the contributor may bi^long. 
><^TI»6' i&te M* •l^epherd, schoolmaster of the f 
d^AI^,Hhe husband of one of tbe suspenders, 
sPei^tkrHMrtM^tdtMs ftind in the third class; aii 
widbi^ #is tliereby ehtined tb ^ii anmiity of 
after ^ii^eath. ^ 

^ ^^I%tii4aiW^r, MftLarfcrt; Beihg a creditor of 
Shepherd, used arrestments in the hands of the 



mBT.OFft»BWI|flil] 



*P% 



?/aiid t!ierel>y' attached the two ye«8^*^^ ^ '^ 
Mrs Shepherd on the Ist Septem-jrvme, ac. m 
St September lSft2. Other arrest^ **^^^ 
cm by othefC|:c^1pfn|S\9nd a multiple^ ^m^^^ 
sed before the^heriff of Stirlingdiire,?^::^^^ 
Mr Irvine/ in whieh M'l^wqe^ i^as 
fund ij» medio, to the extent of his 

g^ve a chm^ lx)th to Irvine and 
pen his decree ; and bills of suspen^ 
ted for botli parties, which were pass* 
^e of trying the question, whether 
Irs Shepherd in . this fund was arr^s- 

dinary took the quest^op to rfrport 
IS ; iu which-*— 



rs j^^d^d—That the fund in ques- 
ary» and, therefore, by ^cmmdn law,^ 
ilienated from /the parties for whosn, 
^tablished ; Uirietant voct Aliment i 
lieg. 15, f 7; Eni. Lib. i, c^ 6,,f ,7^ 
; of the statute was to establish ;qi;ii 
support of indigent widows of scboaU 
It its whole poliey and end woiildibfs 
^ere allowed to be attached by tl^eJEP 
t in the sinnJar case^ of Uie aniHiitieti 
vidows of tdergymen^ from a fund^ef^ 
e Hiaaner by PajeliAtneiit, the Court 
they could not be^^ as^igoed^ ^ a}t|9^cnBtgh 
y provided , tlmt tbey: should {»of be 
said iiothiagiibimtaGi3ign«$|MW9;tiIMia^ 
son, 19th ^ayJ.791:^Jjrpr. 10^41^ ,; 
oDsuf a similar nature, fu«h;af0ffi|9ei*a 
tni//ia\ p. 5^)i^^e]9J^i^femims ; 



4M 



DBCSSItOMS OPItnt 



iw^iitiSt!t. MatMiirdhl707,i^W«wr-Mbl'. 10it9«); and si 

M'^^ Wiige»<fir«*; B.llt « 6. f 7)^ eottld Wt be attac 

Arrmimit ari-eMment. Tbafe^ifimkttKtidiMaiHidbequeai 

^^^ja gimiiittr aT fliiir itittd to 1119 i«id0le, tod dcd 

idhftientay Ibid ttoC sttlM^ble fw U^^ebta, « 

dttatioH vuBld Imv^ basn^Mtttl; and that 

gfelature had sufficiently expressed the same in 

fty^ dedanng ibat it was m fimd for the mippc 

maintenance of ixidigent vidoirs, aad by com 

all the psxochiid sdioolmasteii t& ooaAributa to 



The vbR'ger aAiwerid^^Tbe ordimry rule 

is, that the whole of a person^s estate, from wl 

sburce it tnay be derived, is liable to be attacl 

the payment of his debts ; ^nd Hie instances of 

tion are only, 1^^, Where the fund is in its oi^ 

tare alimentary, of wbkb, p^baUy, the only in 

rwc^msed by the lenvit of this oomitry is the c 

servants' Ivagea: 3i%, Wlleit» it 1|M been di 

to be alimentary in th^ origfisal coBStitution 

right ; (Sikiir, Lib. iU. tit. 1, j ST J which 

case with annuities to widows and 4»di^rs, wh) 

dedared to be alimentary and not attachable for 

by the grdnttr# of the right ; Laird of West ] 

V. Laird of Morriston, 27th Mandi I627» Durie \ 

10,368> ; Btnruil tr. IXike of Douglas, 16th Dec. 

Bruce (Mw. 10^400^^; Urqnbart ft. Douglas, 

Dec. 1788t Kilk. (Mar. 10408); and M'Gregor it 

tees r. M'Gregor, 2ad Jan. ISSO. fioi all these 

tfa^ pirovkion was expressly declared ten ibe alimei 

The anmiity of the widows of ckf^men, & 

taUished by statutes 17 Geo. 3I/c li; ami 19 

IIL c. SO, fbll imdei^ tiie same olaSs ; ' ^ becaust!, 

these statutes declare' thilt< the amuittCies are ali 

tary, and shall not be attachable by varrestnisiit; 



MmT4»ismmtm^ 



m^ 



leemwm mg^mm pf the law. i^J^i?^ ■ 
*- idaes of aoimiUt^ wbjcli pi^ ^ei^pt-^ 
inacy UabiU^ for, 4ebt;a» ^re tjiio^e 
2 interest is coBipeno^ ^y haying % 
to Uie aerrices. of tbe aii»ui^nt9«, 
ifith^ officer's half-pay and othev f^, 
giyen to imUie aervaota^ It i^ 
present ease does not fall under any 
[ia» and» theief(H:e>. the diti^.niy npryst 



^-i-The statute by which the fund was 
nt dedared these provisions to be 
bas it exempted them from liability 
pr debt* It ia very true^ that it im^^ 
nj contribution oi^ all schoohni^t^^, 
dedaratioa that the fund should not 
w,I do not see how this can plaee the^ 
and in a more favourable situation 
have been had this been a voluntary 
by.a husbend to bis widow, without 
a the constitution of the right that it. 
Lachable for debt* It is plain that,, in« 
proviaipii might be arrested by the^ 
Btidow^ because the only clrcums^nce^ 
it fremr their dil^^ence is the declajre-. 
bet that it shall. H alimenl^ary al^l not, 

!the;Widows ef dergjTnen, thcf statute, 
e -:fot)d shaU not be arrestable; and^ 
»fH^[it^w$|aJd, liftve be^n very e^ptrapr* 
^batre ipi^^^oifL, ei^ aieiflQatioil of it,, 
nte terminum^ which would have been 





w 



m 



DittiftjifeW^^ 



^rr^imenL in the case of M'Kenzie, 19th May 1791 iJ^*.T\ 
^;j^!2S^ fitich dedai^on in M^' lit^ti 

blishing the schoolmasters* fund. As to sei 
wages, their exemption from liability to diligen 
I$6sids plainly Upon ' the interest and privilegfe^ < 
ittaister; He is a party to a mutual contract ; a^ifl 
titled to have the services of his servant iii retti 
the wagiBS ;' and,' if these were alldwed to be ari 
tie servant Wdirid lid longer be in a condition t 
t6tm hU part df the contract. ' This case I^ thei 
veiy fitlmilar to those where the puUic interest^ < 
of third parties, is concerned. 

iM^dJitsHce-'Cl&h.—'l am rather of a diffbre^ 
nion. I am quite aware of the discrepancy fc^ 
this ' i^tetttte and that which eStablisSies the foi 
tfie widows of ministers ; but I, hevertiieleas,' 
look at the object of the legislature, which fi ^ 
the skihe in bbth. The statute imposes a comfit 
contribution on all schoolmasters, which,' 1)1 lii^ 
ntbn, makes this a very different case fixstti tlikt 
vWtintar^ provision by an individual. ^'^^^J 

The preambie of the act ileclares the ir^treftt 
' df^nce, and necessities of the widows otidH6^ 
* ters ;* and it goes on to provide for their ^ i^lief.* 
this certhittly makes the fund of ah diilTeilt&^iii 
I tliiiik the case of M'Kenzie t. Morriisosi'df ^ra^ 
pottantefh thfe question ; because,' although ^Itift^ 
tffetf^iSose trpbh the fconstrnctibn of'tiife'iiify 
Ministers' Widows' fund, the Court f6ttiitf;<fiid*P 
thWfyiid' was not assignable, althougii the '^^tro 
mJOfiife^^ut; isslghaiidnb. ^ - '^^^^^ ./.obi /; 

Z^iftKftma^^tbncOTre^^ 
said — It might be very desirable and expedient to ( 
to a different decision, and to find that this fund ii 



^,thiis efli»|iajr 4ixWe<Jf #ff,<?W^ 
rdedslpp of t|ie oU^er J^udges, ,;^q^ 
10118I7. in the following oji^iiioqf <frr\ 
inion that this fund is arrestaj^Ier >: 
blic fund«^ ^nd fimopt^ bQ,a$$ixailAt€|i^: . 
[i8» iwr the p^y or ]tM4f^pQjr;of C#CWftf 
4ge^ or any pthw <^ of (^m^^Ot^ 
r or duty is tQ be perfornied ^ thf.» 
ler^t^n of whichthe pgyioTiSalajQ^ia 

is purchased by the hushpsd;^^^-^? 

and must be goTerned })y th^e sam^v 
Ltures out of landed est^tesp^pr F)ra^r.! 
If settled out of the pei^o^al, fw^s p|: 

id had left his widow th^eUfii^nt of ^ 
I i}fmdf yielding an annual renlb tp ik^ 
3 this annuity, it would have beenw- 
this husband had expressly defi^^^ ' 

lot.'. • ,...,::,<- 

T^k^teEs liad in^«de4 tljat ^fmi^ efrf 
giyen to tjxm aniwiiticis, ti^, ms\^ I 
i^.le^iBUpffxe lot mk^J^ sppiPpf^^ 
)H^,'as wouJW Hve bom ;M?f5?ssftfy i^ 

und, and by ^,1(V^4t^ ^,]^ ^^gSfi^,, 




4Xn 



jmemiom (WTSE 



^ ith saidtbat tli« Court fWid'Oie Ministc 
^ ^WB* ftuid i» not ns^ignable, tihbagii the a 
^-BByB'tn&t dfr«steible. But &h wtts because tb 

* considered that tbe act would othei^ise be 

* evaded — for a creditor, by imprisoning the 

^ would extort an assignation, and so petider t 

* vision against arrestment nearly useless. 

* But here there ia no evasion of any statu 
^ isiatter being left to the operation of the c 

* law; 

' 2%^ Cauft^ aeeonM^gly, found, that the tm 
anheataUe ; atkd remitted to the Lord Ordinar) 
tide any oth«r points that might iem4iii in the 



l40iid Osdinanr, M^Kmde* Act. Coekinm^ S 

J. Hammm, Alt. Dean of Fa£. (MmKr€ 

MiOer. /• Wotlierspoon and J. Dictde, Agent 
CleA. ■ i: 



SECOND DiriSION: 

No. LIV. e^ January li 

M»s WADDEL-LBCritD *" 

against ' 

Mils BUItNBTt. ' 

Pactoe.— Teubt. — NoaitB OfviciiiM.^~Vpc 

' death or resignation qf trusted on an ha 

' estate, no one h6iti^ ^ien entkkd to ttisume t 

Jke;^ Cottrt, on the tt^fpUeiaXio^ dfa parfy h 



irtrwSl tpfoiktt iijftefer im IketmiU**^^^^ 
tving t^ to eiMr mt» mmedim^'"^ ^ '"■ 

lU»et<imt»i<»€^ltpOmiifktt0t«. Factor. 

Bacon hAvii^ putohavdd/ utaijudi^T**^^ 
Usaa JfAnMotL'a life iaterett in ^^d 
iiilloii» togedieririth certain ^aK(jmii^ 
lobged to 8&r WOlkm ki f ee^fi&mpl^ 
^H»Dveyatice (in 1882) of both tbes^ 
r of his brother, William Bucon fiton^ 
iison Barr, obBgingf tlie tittfvi^or of 
M of the jmd^cttaM of^ ite other bei. 
^ttmt, whicih itis^dedwied^htfaiiib^ 
fe oft^r Wmiam Johnston^ and there- 
asteeflf are re^e^ed of the didigaiibnd 
hem in the execution thereof^ to as^ 
Lstee, to be ncmiinated by Lady John- 
of her danghtera. The purpoaea of 
nerAly, ftrst, that the trustees should 
parities to Mrs Waddell Boyd, or any 
L.59999 (being the amotoit of the pnr- 
' a bond of redeemable annuity, or 
if necessary, to apply, in payment of 
) prices of the truat-subject (which the 
power to sell) and the mte in pay* 
rest or annnities, and other burdens 
etiBg the trast. Seemdly^ That the 
or the residue of the prices of the 
oahi^be^pplied aaan alimentary fund 
on, in the first instance, and after- 
c c)#lreiBi^ if ahe predeceaaed her husi^ 

far^lldd beeb iii&fii in 4he midntai}ed 
ui|)i<9^«ap!iai^) exocufed two hei^table 
\vx of Mrs Waddell Boyd, for the sums 



.^ J| 



If* '* 



: 'I f •••.•■, 'a., 

i 



^I'ln 



M'M 



'iV'-i 



U9 



/msnopmwwim 



^fftip.JBu^*ib(tii9^ redeem 

F^iei^, WmmaJ0lkrmlm'§ Vt^ ia •^MiAontioii of i 
^^*^ 9ihJnmi m^ aboBdmid dispos 

^'^ McttfeHr <>i!W.tiie^«iif»teil0il liiid* .&r the re^ 

4ttm (Of IkSOQQ^ Bf Ote fonpet d0^ tlie 
obUgatitheMtket toiafe£^ai9 d^ th^ 

famds ; and, farther, a$8%ii the rents to her du 
lilbr of iSir ,WiIliMi Johnston and tbe iion^red( 
of>iiie Anmiity; and.gMnt fidi pdirer to her 1 
into pdssMsiaiit 'and leirjr l^efiwUiii laase the 
^aludl £dl to nwke regnkur {wy^ her ai 

* dsdaring {larticalarl^that di0 may enter c 
f'Partaof theforteaid landt and^thfin as st 

* think proper; and that she shall be entitid 
^ diMst fliaMlarits of faetortf or fefStiTari to be s 
^ ediyjr bef^ «nd all other reosonaUb pharges ; a 
^^ ahfidiallpotthe liaUe to da^u^t diligence ; ai 
' be liable OttLjr for the aotual intinftfiasions of 
f nBd her facials ; and that die ahayiquit and 
^^lOftaeasion at pleasnre/ 

By the seoond deed it is i^rovided that» if tl 
teea shall fail to make payomit of At sum bo 
within six months, after notice given to them 
tender^! ^ then, and in that case, it dmll be \uy 
f' Bhd in the poller of, the saidrCdtherine W 

* Boyd^ or of her foresaids, immedfiiediy after \ 
^ piAptioii ^ the sdid six mootilifl^- and witlio? 
liittimatiQn or proeees of la«i^ fifrllat effect, 
f add diipose^ in vhole er lis lots; >of the f( 
^^lalldB»''&^; ' they b^g eft^^ upo 
*>Me(et of fbe price to be given tiMEiifiir, tb ho 
^ count and reckottiilg( to iltf dr«ni4Edn»aids»' & 



JLim afr SESSiON^. 



PkUl 



t, Lady Johnston, in t^tiMMilVtee'^JJj^JjJ* 
ted a deed of nominnti««a4if^<Rcll(^.B^<i,>(pllu 
s trustee, in room of .^fle 1te«a«Ml. "^' ^^ " "" 
■ed b7 a deed of assumptlJai|nflii;1j£-Facfon*^«'>-^ 
ibjects of the trusty exemiUffi«^.J&«tr^J!~'^'^ 
self and Burnett, ^ tni8«»,^|to(lr4lte ^'^ '••*' 
i¥or of them, and their «ia%dlle(Qifiir 
ict the purposes of the aiijgitiitktMil*- 

^ed the trust, By dec1af%)gi%ijmnto« 
lett having become botliid)tto wA^^e 
obligations, to pay L.6fl9^4o^Q(}aiiiiit 
ainst the trust-estate, aiiicl.M ^nht 
> bond of anntiity of L.tlS^idiafti^ 
[i&ton's life,, secured overthe^ ntiii^ed 

ind interest due to Mrs BojfA kasiing 
paid previous to BiirnettteiMfaiiRCl- 
md she having in consequ^iiail'sahrdl 
BarTj which would have tntitledSiid^ 1^ 
tailed lands to sale, Biiniett iWlMidli- 
er his personal guarantee (Na¥»JA|p0) 
regular payment in future;t>lito(;felail- 
rt, but also of the principal isumifttite 



e course of his raanaf^eineiifti BttnmkHi 
Lady Johnston and the; tnifit-feitote 
mt L.2000. ih i. :{ 

mstances, Burnett havingtdiQjirdttWmi-^ 
esented a petition to the CmikmSMibg 
m of the trust affairs, aiJKl^fllferfejEiDre; 
appointment of a ' judiqi^/jjebWfeOn 
U the usual powers, ni}Qik^i^iSSixigi$m^ 
\{ the act of sederunt,' r U;:^, tiKXro ' 
this applicatiun, it was iftlpMS ^1^ it 
ry careful and economical |||fWj^ftB!l»ttt 
Ee 



414 



BBSeiSIONS OF THE 



nett 
Factor. 



Tru9L 



^ ^.^j y of Ite ttMrt^slite, Hkth as might be expected 
Jto^de Bofu juAiiial fector» that the rental could be made t( 
Aeanitosl burdena and charges upon ft, an 
meahs foriiltimately Meeting payment of Mr I 
ddims. 

Thia waanoC aH a^^plteation for s^questratio 
Mndd that^toftgbj to Sir William Johnston j 
V^^ed in Ma^ )Ba€on*3 trusty but an apj 
which the due execution of the trust itself, foi 
Her^st 6( ttll tbfl«f«fried, rendered ueces&ary, 1 
^fettfcaViugteft HO document nominating a t! 
Ilttet<eil*d ftito, *»<d thfere not beiiig in the trust 
4^^ of iisMMApl^d&atif destination to heirs, fai 
tHIsti^es. Tke potrers of the Court, under & 
t^i^an'ees, lb titaoe a factor i<? unqueslioiFiab] 
founded on the common law and practice, sai 
by a seiries of jH'e<5eaent8 ; Sfair, i v. 50, $8, Ei 
22 atfd 2d ; 1 Sell, 82 ; Andersons, Supplica^ 
Jtme 17^, -FWfe. <i(for, 7439) ; ^Votherspi 
Oth^i^, J^tSttoneta, 15th Dec, 1T75, (Mor. 
6rttit^ndOt*ei^ Petitioners, 13th Feb. and 2 
1790, FW.JDfe.4Jmar. 7454) ; Busbj^, Pefitic 
Teh. 1*25, j& «irf D- ; Alexander and othe 
ffebw 1SS4, #. ; M^ir and othem, 6th July li 
Christie, Sd Feb. 1827, »'&• ; Douglas and otl 
Jtkly 1'82«. I 

Mrd Bo^d bas neither title nor interest to 
this application. She is not in possession, and h 
no reqidsi6on,hi totals of her bond ^ entitlinj 
sell the inientxillledland8 ; nor are there any ai 
anniritf or interest dne to her. The petitio 
effered ^n nndcrvibted guarantee for the regi 
ment of tHesieaiima; and, at all events, tlie g 
of thepray^ of th^ petition cannot in the h 
gfeeSi^joi^'her^ietirity, or interfere with any] 
il^ OK 1^ ^Mit -for recoverf of her aunuitj^ 



^ 



OP.&E^I(J9i- 



^i4< 



tbebood, or intereEitiMmPimB^9» 



> so. 



^•n ,it" 



■j:U 



netU ;;jfl 



Mrs Boyd— This agpl^i^i^ Mim^FaJ^. 

incompetent. Its effect, if ff^tJ^^^"^^ 
persede the trust mtf^T^j^gfin^pij^t q^Or '''rutL ^' 
Lvest the respondent jpf t|ie^ ^^Sk^, <^ 
iiauagement exjiressly; co^erred Ujp^ 
able securities. She^ J3.iio^ |i^ t^ 
>vided for by the hon^ o( ^xntii\ty^ 
igiiing the rents of the entailed estate^ 
ill the event of tlie trustee iailixpf i^ 
yment of the annuityi t^^ rjesppnd^j^^ 

to enter into posses^o^^ and U> ^^ 
the ex^uce of the trus^est^ ; foi; i^ 
\ay that there are no arr^iai:^ yf int^r^ 
spondent having i4iil€4 tp abtain,ja^y 
ijigeHieiit with Mr Burnett's represent 
e regular payment of l^er j^of^ty ia 
ids to exercise her rig^it to appoint a 
already raised a sutiim^ns of :f;nailli) 
ist the tenants. . . 

nistance is wanting i^ ,tlii^ p^se tj^ 
it an application fur sequestration of 
ointment of a judicial fiMHotu In piirr 
here no competition of diligence affeo 

; nor> according to the. petitioner's 

are the entailed lands (which fornx 
^-fourths of the \i hole property) c^iar- 
(ia the words of Mr Erskine) * ^i^al^ 
il, to their value ;' and with respect tq 
;r late husbaud, he was npt jbljx h^viUir 
ill, and never was infeft in these lands ; 

and 56 ; ii- Bell^ 306, 4th edit. , ^, 

' , - ' • ■ ■' !«! ';;^ rtj 

iife^Ckr^ said-^If tlie fy^ipiitiop \^^i:^ 



it 



4U 



tmsm&m of nfE 



**>ii)i!?' ^^^ sequestration of the particular estate of Hi 
Boyd «. Bur- would have no power to grant it. But it 
pears that the db}tet is different ; and the Coi 
the practice of appointing factors in order to f 
a6&^ tb ^JtfBllng trusts. The prayer of the 
musty however, be amended. 

Lord OUfd&e was of the same opmion. 
spondent's situation will not be altered by the 
ment of ^ Judicial factor on the unexecuted tr 
Lords PUmtty and AUowmj also coocurrec 



IWtt. 

Faolor, 
cturn. 



* The prayer t)f the petition bein^ dcicordingl; 
thus— -to name a judicial factor on * the tru 

* oYer the lands of Hilton, as the said tru 

* in the person of Mr Burnett' — the Court g 

* prayer of the petition as now amended, r 

* the rights of the respondent^ and decern^* 

Mr Barr, in order to obviate the necessil] 
pointing a judicial factor, offered to resume i 
of trustee, if the Court thought this proper ; 1 
Lordships were of opinion that this propositi 
not be entertained. ^^rrnh *j 

Fm the Petitioner, DeanqfRac. (Monareiff) Skene^ 
ter. George FarquharsoUf W» S, Ag^nt, 
Hespondent, T. H. Miller. IV. Stctcari, W. 
For Barr, J, Dwihp.jun, F, Clerk. 



Jib ; 



; 



'lO'limj^OflJ- 1 

i ji* ^uiihii biin J: 
:;no)ijJ!>3t9tiiihdufo, 



mmiy(mc9mmn> 



All 



tf CUNINGHAMB, Ewj, > \ V 

against 
LEXANDEE CUTHBERTSON 
> WII-LIAM BROWN, i ^ , 

nd obSg^akm ^rsliuf'J^^m aUpff§^ 
teineh or mmUtefs Mtipffnd, /wfi )0f 
nil ikm e^mkigf amtfiiMfd iu a cfin^ 
ds witkfmt the teimU-'-^/knnd tQ ^ 

augfnentatwM. • 

m prapiieton of the five-iii^k-l^nd 
ngniuir» OQW belonging in property 
Duvayed two small portions of it to 
ithors* TJbe dispositions coptid^ji^ 
use of absolute warra^ice *r-«^^.^d 
igreed upon betwixt the said David 
er and ]roanger> and us^ that the sail 
>sside and Bairdsid^, should be i^ee of 
nd or miiHster's stgiend,^ in i^^pect 
iken the whole burden of the teind of 
rk-land of Xiangmuir^ and design that 
1 remain upon and be payable out 
r the said fire-merk-land called the 
rmuir, presently possessed by the said 
n : Therefore we, the saids Mr Wil- 
[leth Cunninghams, spouses, with one- 
iking burden, as said is, bind and- 
;irS| e^e<;utQrs».a»d qu<^;ee8orSa to wa|v. 



I)« 



BffeJ^iBiSif ^^iP'^^ffliJ 



Cuiihighame 
v/Ciithbert- 

TeintU, " 
IVairdruHce.; 

Stipend. 



27^^»- * Wtft ttife feiftii^Ili^a Hk*it«)ii,* eyWj^^afti 
** firbWu, fii8\sp6tise, atitinj^thdrliffetimeSi -k 
' their decease, the said David^ FteWttbAA, y 
^'ttiid his ibre^ids, from all )^ftMmt i^f'^f • 
i fnt^isfef^ "st^tia, f^irth of th<^ ^liid la^ 
^;Moid^ide atid Baii^dside, in all tlni^ tx>bhigC'^ 
The dispcWtibn also eontaind b cSth^mca 
whole estate of Laiigmuir^ in ' security of thS 
trarhinrfice, in the following teiros ^*-^' A«* 

* said Df^vid Henderson; d<ier 9iM ymtifger^ t 

< spouse, your and their foresaids, their furder ! 
^ arid fteeddm from fk^ ^dnds ato4 ' iftihister's 

* fuTth of fhe said lArids : Th^^fone Ve^ the s 

* Williara and Elizabeth Ctolihittghattit, spous^ 
^ orie bonseni, ahi taking buiVIM as said is, h 

* oblige us, con|uiic*ly ani sevcrAlly,* t)iir heii 
^ cutors, and successor^, td Wftifai^ for the saii 
^ Henderson and his foresaids; and we, Mr ^ 
^^aiM^U^abeth^nninghAtni^.^JEto^ do hei 
*' sig^ aiid dii^poiie to, and fti fi^f^s ^f, the sail 

* Henderson, younger, his heirs and rfssigneeF, 
^ all and haill the said mailling of liangmui 
> hWises, biggiiigs; ya^ds, pafts, ^mrles, pe 
^ flieifeof, laying as taid is, iind tilftt in sped 

* t*an^Mce of ssfi^ lands called Mo&sid* and Bii 
^-^^fitom all tynds or minister's ikti^nd to bepai 

< thereof ; and in casie it Ahall happen that tli 
^ ^^ the ^d Ittnds^^ya'blefUrth theret^f, shall 
f %ed fi^cmi 19i« s^ IMvld f^en^ei^n, elder, 
A dpdUH*, fell A^ daj* i)f Wieir IPreti, Hjt aftei* i\ 

-^ ti^aAe, ft<t>mihe'8am TU/^id'M^ikmn, jom\ 
>»fhi8 foresaids, Hieii and in tKaC^(MB(|>^hey slii 
^ifull dttd 'fi^ i^e^ressi |«g*rtAiJ fei«iq^«t€ess in 
-n^tm Am«h «f^tMW«Mft>ttS«^'^^^ renff 

;f ^aHA^Ites'k)! ^iM Md AkiUfbl >«^>^ZJongm^i] 



^ 



ouRT OF mmoBSn 



filf 



5ter*8 stipends, at 9b«U l}»|)|m -to bf ^j^y 
I is, proportionally mApTQ r«/« «flfeurci«,iarii«m 
ivietion/ :;J^p^ 

J 13, the minister qf ^ pftqi^ obtfunr 

Lion, which was foU^iF^. bjT* <*^<^^ ^l^iidiai, 
16, decerning the pQrtiw.i^iQUgmeOK'^^/'''^ 
to the land8 of th^ 4^<W(|W% ' tp hf 
uningh^qi of LangqiiMib ip t^TlAS of 
^' That decree pM^ m f l)9?IIW «f 
other* who wai^ ih^A V*VQmmm'^ 



^oer succeeding ta -tbe prop^TtBT m4 
itle, he raised the pf^am% HCtiaa few 
^ove decree of locd)jty in «Q fw 99 H 
8, on the ground tk«( tll9 wimriQ^» 
iS insufficient in law tp ^ntitjt^ tlp/9 9fli4 
laim relief of augm0pt;«ti|in9 fr<>m tb# 
is predecessors, or to ^filc inpi:^ thw 
>m the stipend e^igili^l^ ffioja tl^ 4t^ 
at the da^ of the PiSfl^Ml iHilUflKtum 



this action, the l»«Ufi«(9r pfM^JML — 
^r payment under this WArraadice wil9 
y years after the date of tJ^^ pw^n^f 
i for upwards of Qig^^ yc^ait^ Mitew 
iiBposition to the d^nd?r'9 predeees? 
ms similar to the on^ n^w in ^uesitioii 
entty under the CQQsi^firatiw of th« 
le last thirty years; a^ it is iKPur^eon^ 
d law, by numerous 49<4M.«Os» tbiM; a 
>r is not liable for aiigB|efl|tajUq|is im^ 
press obligations iq feli^i^ffftW jbraidg 
[ess migmentatioBS 9K9: W^tMiy «^n* 
Ided for. It was iffW a Sfliimi^ oa 
that ibe pursuer liCDl||^ :tiMuaa(ioiu 



4i» 



m&mm»'^if:9mp 






»l«t J^Arfi^ ISQO, Y Jif«*^ l^eifiSB/; Bilfrl df Hdj 

case the Court held, that a clause of mUief i 
paym^t of aii;f iem^, ot* any part^df t&e sti] 
aH ye^m aiHi terms by-goite, and for all y\ 
tCi«AS jn iim^ coining, for ev^, as efiifficSeiit t 
flft^mentatkitis i but tfak decision has l>eai c^ 
ed of atid deptfted from, and cannot be 1 
atfthoifKy;^ 'A eonttary decision wc^ pronotu 
Alexander t^. Dundas, 9t3i June le%\% where th 
beats, Hmt it was now settted 4hat a datise of- ' 
^M, td be ^ectaiEil agaii^t angmtet^ srtipeiid 
^daH^ bear a reHef firom aU augmeBtatidns. 
r. Lindsay Carnegie^ S7th Jan. 1813, f>l>bi 
if^'«lkjf, ii:«479> ; Hamilton v. Calder, ISth Jttn 
These dteisions seem to settle the kiw, thati 
flft*dng^ the datLse of- relief may be, it wfll abl 
£^iiist f utare augmentations, unlessf wtgm^ 
a^ expressly mentioned. 
^^ >^^ bhly case importing a contrary dActrin< 
€he %5Ri^tion of that of Lord HopetoUn afirefi 
ff^ed; is Low t. Bethune, 01st Jan. '4801^ W 
ftiiitifded on hy the defenders as importing tMI 
ligation like the present can only exempt ASelk 
fottire augm^lations, when he has coiiV^y 
t^lhds to the ^ispoilee. Biit the cktiseki %bei 
£i)W1^*3 Very different from the present, ittd i 
li^^fM^on brdadelr than almost any othercase 6M ! 
a|]^ttd«ri^ Very neat^ to a direiit WarraaftJ^^i 
^^^ta^Joiis. The distitoctifm'finnttlied otf 
defeftd^ii iMis ilb« pl^felded iii Ofe t^m of LoWj^ 
iMy' df^dhe piAdt i^ailis ; and the^ 61Mh]ic«iok^' 
sound in itself^ and ought no^ iMWit6^i^i<^ ^ 



iURT OF 



J 



«ift^ 



5 defeoderg i-^ ^ i]nif )iul^ 



?<Qi<l9.M«^ 



dispone^ laj^;.;^i|]^tbtlM t(iMi49*i^^ 



QU to warrantjijad jj^li^Yfttb<^riW¥te 
g, he 13 bound to JBpU^YPfoWSi f»tiw% 



son, &C* ; 



TeituU. 



i i 



. ^tiperuU. 



mveyed in this ca^e pc^Maisl^fJi^^ 
rids belopged to ^i^flifrpropn^Pi^, 
>f relief is frogpt .p«ym»p$ **rf.Wyi 
ers' stipend fu^th pf t}{0 la^ds i^/ 

If the titular ^d ^^ipapQ^ed J^y-i 
d|tJie defender ft|t th^ir 91^(^9^ 
be^n entitled ; to iif^t^mit Jpe]Ui$. . J^ 
ill payment of aB7teipdrQm§t|li9}|i4ft 
re part of the toiudq; but bejite tbj^ 
randice mclu^ ipiiuafer's ^ipepd ^ 



'.L 



^UM^i 



icable to a case, U^e Ih^'pre^ei^t'Jt 
don of Low r. Be^l^le| 31i(t,Ja9^ 
Ration of relief.^ t)iat cp^ wjis^ v^isji 
sent ; a(H) tb^ Court fo)iQd» as sti^to^ 
^at, as there waa^xio copy^y^P^^I 
ration clearly iippprte^ a 7^i7an4i<^ct 
tations of atipend^*' Tk^ B^tJ^ontj^ 
rul^ this^ Ttie dfpisiow referred tQk 
a not apply to \he pi;^e^% \ tk^y yf^m 
L either the teind^ wf^recpny^e^ .wMllr 
re the clam^es of wiM^rand^c^ i^er^fx-^ 
1 or equivocal tefip^ . Puj^^b^re tjipx^ 
ce of tbe teinds;; ^^^ (bo, c^l^^^isai^i 
I, and the m^atipnj 9^ Rl^tic^, ^fff^ 
year 1798, whienth? .first .^(i^p^^ 
to the date of this fKrtioqi, tb^;8^p(Bp4 
pi^id by theHi««^|,«>rbi#^pire4fl(^t. 
us to 1798, no jjaf^ o^^fbf ^ ^^^P^ 
ir p?irty^ ^^ .., j-,^,^ j ...^ ,,, ^,, ,,.^ 
y nnd GUlies wer^ fpr sustaining th,c 




i^ 



jmm»3mo(f'Tm 



tj Jan. 1929. 



' i! 



r 



■^\\ 



Til 



Cpnl 

h Cutfibert^ 

mm, ^c. 

Teinds, 
SflipetuL 




irea^DMS of r^nction, as tiiejr emwidered Oe^ 
ame setUcd l^y the previous decisiom of the Gonrf 
cla^is^ of warrandice against pajment of stipend 
not relieve from fature augmentations, unle 
mentatiiHis wepe expressly mentioned; mid, 
tliAt augmentations could not then be in the 
the parties, as at the time of the agreement it ^ 
general understanding of the eoimtry that mi 
stipends couid not be augmented* 

On the other hand, the Ij>rd President am 
(^raigie were of opinion that there canhi be i 
yersal rule for giving effect to an agreen^it h 
dtion to the meaning of the parties as express 
supported by die real circumstaneea of th 
Here a small portion of land was scdd ; but the 
to which the seller did not pretend to have an] 
were not sold. It was nevertheless stated t 
]|had obtained a price not only for the lands, 1 
the teinds, the amount of which could with oe 
be ascertained ; and as he was thus obliged 1 
tect the purchaser from all claims by tfafr 
there could be no room for doubting that, wfa 
titular chose to throw the burden of an augma 
upon the lands sold, the same relief would be 
For that purpose, real warrandice was givei 
<^ sellers remaining property, so that tbereliei 
be given although the lands had been dlspo» 
tUrd party. It was idso a most reasonable ai 
ment, in Uie case of a proprietor disposingJof 'k 
perty in small portions, the eKpeflse of separate 
GpAs, in the ease o^ fi^xY d^i^wnt purchaser 
(husavoided% 

The Court being equally divided In opinfiw 
requeued the ofuniiins of the. J^dgesiofnth^H 
Piidsioa and perma^wt LordihQcdictorjr ^u{K>ti(i 
lowing question ;-^ < r -- r. ' - - 



URT OF SESSieWi' 



aii 



> the special termSbf ^te^^eeift^'nf *!£^|*;^ 
eller and pnrchasef ftf ihe landk infcuxiinAaai« 
lie clauses of waritiiifdfce, person tf and ;;^^"^^^ 

and adapted thei*et6, Jfee djjinfdn'of ' 

ra is requested, ii^heAe^ thli'warfati* ur^^..^ ^ f^ ! 

} augmentations $8 welj a* tq the sti-?^'y'«* 

It the time?' 

e-Ckrh Glenlee, AB(Mmf^ PitntUfy^ 

ulowhiink, MaekeikiMi M^dwyn; ^aik9 

irred in the following opinion >^ ' 

[jinion that, advertillg to 'the Hp^iat 

eement between th^ flellel»and thepwar^ 

nds in question, andthi i^t^^ of War-f 

1 and real, adjust^ and adapti^ there* 

ice in this case appKes to augnaeiitft4 



then proprietors of the one Jlitft antf 
f five-merk land of Langniuir djiBpoa^ 
' the defender, Cuthbeirtson, ten tterelf 
3, now ealkd UabyauW, and to the attW 
nder, Bromni, Ave a<«^ of the same.' 
tehilh The clause of warrandice \fi f$[ 

And in regard it ift agreed tipoti be-J 
t the said lands shotild be free of p^y^ 

or ministers stipCfnd, in respect thai 
ti the whole burden of the teind of sifi^ 
1 of Langnniir, atfd design ttat tho 
main upon, and be payable otit of 'that 
lid five-merk-land cilled the mailing 6f 
c. ; therefore we, &c. *irtd and Oblidjgci 

exeaitors, and eueee^MHB, to ^rfmH 
. from all payment of any t^iiids or ttM 
ad furth of the said lan<te in all time 

to this clause of 'pisrsoniA i^ai'ranAS^.' 
clause of real w^t¥tti«icfe iii fa^tnr ^^ 
fL>r * their furder see«riiy KflflTjSiJdtofl 



423 



mctSi&ii^ i)p ^UE 



Sf iah. J829. 




CmmntfliaiQe 
V. Cutnbert- 

tVarrandice, 



1 



^ from tHe teiiiild and ministers' Stipends fnrti 

* isaid lands,^ fcj^ which tbe sellers dispone 
^ the said piailiiig of L^ngmnir/ * md that ii 
^ warrandice of said lands from nil Winds orm 

* stijpends to h^ paid furth thereof; and in case 
' happen that tynds of the said lands payab 

* thereof shall be evicted from, &c. then and 
' case they shall have full ^nd free regress, 

' and access in and to as mnch of the first and 
' of the rents, maills, duties, of the said nii 

* Langmuir, with the pertinents, as will efi 
^ correspond to the tynds or ministei's 8tip€ 
^ shall happen to be evicted, as said is** 

The very precise and distinct terms in wh 

agreement by the seller to take the burden of p 

of all teinds or minister^a stipend^ aild that tli 

sold were to be free from paying any teind c 

ster's stipends, fortified as it is by tiie clause 

warrandice, leave no room fiwr dt^bt in our 

that it was the meaning of the parties that 1 

priistor of Langmuir was to take the burden 

payments of or out of the teinds, It is mater 

to observe, that in this case the teinds were n 

veyed by the seller. They remained in a titu 

tinct from the buyer. If, therefosre, the titul 

made a claim for payment of the teinds, he mn\ 

been successful ; and if he had evieted the teic 

totldeive it impossible to dispute that the pro 

of Laiigniuir was bound to Teli€lfe^|he defeii 

thii^ payment ; and, in like manner^ it seems 

"ihaiwhen hot the titular, but tlie Jfiiaister, cl 

po^6ii bf l^e teinds, the waarttifiited applies. 

^jf^YAJy mehtipps tni|iii|ter*fl itij^en^ It ic 

'ildtibed; ttfo, that thetee lands ■pakLvno stipend 

"iiint' ^e'dlMife^ {hek'^f^;«i^NAi^wlgMpply^ti 

'^^i^iimdiii^^^^^ Hit itU,. m^m^ 



OUR15(.0|vl*|^*^. 



i^P 



to he^imfo^i Cm f^ ii^^^j^-^h^ ^ jag, 1^0. 

Ida, and ^1^0 liUyser had obtauied rq^ef ^.^t^iififeei^. 

the i^ubseque^t gr^itit'^f th^e?^ teij^dg;,*^"'^!^ 
hole, to the miniateri cqfvM have dfy ^l^- ^,,, , 
hat rebef ? This wpwa^ye wen, i^i.?/i> 
and it i^. preciaely whfat is proyidle^ 
clause of rdief * from all teinds pr minl- 
],' no stipend being, yet payaUe put of 
ese lands. 

is consistent with the judgment of tite 
::a3e of Low v. JBetfaun^^ the facts of 
nearly the same aa those in the pr<- 
nre do ndt think that it runs counter to 
hich have held that the, sellers of lainds 
:o relieve the purchasers of auginen(a« 
. The wairaHdice, in dll ifuch qases, 
essentially different from what it is in 
a the case of Low« 

: Bruce i^*the Magistrates of Arhrpath, 
r, the obligation is to relieve the , pyx- 
eind duty» Which is totally . differeift 
lice from payment of teinds or 8tipep4« 
F Colquhoun t?. SmoUet, 21rt Feb^ 1798, 
o relieve ' from all ministers' stipends 
of the said teinds^ as well of all yqa.ics 
f one as to dome, in all time comwg,' 
bvioudy only to the stipend theu paya- 
id no express agr^ment l|y title, pafrties 
ee was to be free of idl pj^ym^ntiof 
ds, a»d tbat the bujr^en qf tl;^ ;t^ij^ 
ing wmU> be bojipe by % ^\8j^^f;^^ , 
rth 0i\ih^Ueaf%n^9 pf T^i^p^d^,.^^ 
warf^n4teftin,a,,?p]^yeya^^ ^r)W<l* 
not ^ijfm^f^^-^fyjf.^jfLy^ o^;^|yj 

ail eta»|»>rAh^if|^^2I«§^,e^^Q^ 
baa pfyayppilpeftFipg^^^f^t .^^^'9^ 



«M 



IWCISIOXS OF THE 



(J. Cui 
Sim, &C. 

T finds, 

Wvrrandic^ 
SiipemU 



^l ^J^ tjfceilnlwtiw to,flBUeye j^^ the I 

CiinLnRhMpe ^t*l^I^4. t vt- vrftr -ro ?^ 

In Alexander v. Dundas^ 9th Jao. 1812» 
jriw 19 lo^H^i^iire tbe vassal * of all stents, i 

* :8^vice8« or teiads^ stiiiends, and other pu 
' '4e99»dIl^.alld payable furth of the forest 
1 QQy tifQe heroafter/ This plainly applies to 
then due aiid payable ; and this ia still cleai 

' oontraBted with the concluding words of the i 
Warrandice, by which he is * to free and skaith 
'the disponee and hia foresaids of all feu, h 
' teind duties, dese, or other public burdens im 
' time coiDmgon the subject foresaid/ This i 
applies to fiiture burdens ; but, as to the teii 
embraces teind duties^ and not stipends or au 

In Stewart tra Sober tson, the clause of wa 
is to free the.dispotier ' of the known feu-dut 

* ble to the Marr family, with tlie teind dut}' 
'^ ters' ^pend, sidioolinasters' salary, cess, ai 

* jRiUic bmrd^is,^^ payable furth thereof precedii 
^ tinmae tli€» last^ and for the current year an 

* to come/ The words limit the relief to 1 
then payable ; befiides, there was no warrandi 
teinds, but merely of teind duty^ ji • r.i 

lit PetrJe against Lindsay Carnegie, lite obi 
is to rdieve the disponee ' from all cess, miiiiet 
' peiidfi, fichoolmasters' salaries, and other d 
^ ^BGsiinibratlces, and inconveniencies whatsoe 

* feetiilg'ihe aame, or that may hereafter affi 
^ same in tlmetfon^ing/ There is no warraodic^i 
]iayn|Mt of ^tfiinds ; and the folio wing clause 
tlie^ inteatioa of' parties to have been to ^ 
the relief as to mintiters' stipends to what wai 
pftyabl^JBidtio lay flubsequent buiNJens uiionti 
ponne. • * But -im cuse of any new law UJ 

* Valuation q£ llEUiid^ with regard to inii]i:iters* ^ 



mktx^immm^ 



m 



ty thfe CTriQetfft ifereby dtepcMWi ' ntey ff^"!** 



mew other ImrdeDB, then tiie sattife^ju^,^,^^ 
IqrtbedisiwiH^. 1?^*: 

petoiin'i^g^tt Cd|A£ind, the ik^ar Atii* ^^^^^ 
ands md teiocls shall be free • fwiti J^'ifL-^ 

S8»iiitd erirtidos, wbatsamever'> which 
ito^ trouble, debar, molest, binder, 
tern in tHe jleMeabte ]id!sse88ion' <^ 
fidii. Thidgraeral dause coctld ndt 
to the natural and legal bm^deu oii 
ig^objeet to a datm for augiuenta- 
la there was no waaraudite against 

f^iml Ckdder, ihe disponee, is waiN 
isSl stents, tstxationq, and impoisitAQiit 
^11 -not named as named, -hnpoaed lor 
njkm the parsonage or vicarage tei&d% 
or )iersoii» whatsioBiever, at any Ume 
t|»t at the hands of the mjliister o^ 
»t or to come.' The clause Tfas opt 
an augraentatim of stipend, theiDa-' 
«i teinds, wfaidb is not noticed at aU iff 
ircandice, and did not fall direst\y wk* 
ere eraplpjred. , 

^se eases did' it appear that the wnr* 
inded to reliere the disponee ^of aag^ 
qpend. fiat wherever this is x:lear]/ 
tiie partiest asd a dauseof wwjraiw 
ample for the purpose is inserted in 
f ekbev by. an eocpresa warrandices 
miimiBi or by a danse admitUog iw 
Ml, thetCourt has given effect to. it m 
reen^tiH&^rtieSe i •; 

QpMminjr^ JKf»iine» the dauae fil waSf^ 
wumt/fbe landa^ teinds, mills, &c. f^-Qm? 
tmor aUt9atiiin% ^o. (^ ^i^Jkem^.^ll 




49fi 



JGiEC1^0NS.C^,I|P8 ^ 



fib CatEbert* 

THml9. 
fFarrmmdiee. 



inta^ww. < ^jjj Bundiy other pbrOa, lm?de|t8»^ 4^^ 

Cuhinf^ame / niencies, and eQciupl^^nfMi9.whateomCT^» W^ 
' anywise debar, &c..from oC ia Ihe Jieaceg^i 

* sioni briflkiiig, &c. the said lands, mUl^.t^^ii^l 
Vsotidge^ and vicarage/ &€.; «q4 the daji^gt 
Us aisoj we bind, &c. to wanwit \ij!(atKM&0^ 
' any bygone oess; taxations^ and other pttbUci](i 
' payable furth of the toid lands or teiii4^ { 

* samen, at or before the term of Martjnma^ li 

* past ; and also to warrant, &c.. frotn all pafn 
/ any teyhds or any p&rt of the ^ipend payable 
^ of the said lands and others above 4ispo9^ 
' minister of the said parish of Sibbalbie,^ of.att 

* and terms bygone, and for all years ; amd ;tei 
' tynt& coming for ever.' It Appeared U> the ! 
that the parties intended that the dispoitee shoi 
relieved of * payment of any teinds or as^r purt 
' stipend/ and that the terms used w^e sp:^ 
tiiow that it Was not to be confined to the 8ti|t|i^ 
payable ; and effect was given to this coutnicl^ 
dingly. 

In Garthshore v. Fleming, thcf intention jaf th 
ties is both clear and aptly expressed, l^ waro 
Against ^ all minis.ters' stipends, augmentatioai 
and of course was sustained. \ 

In Low V. Bethune, a separate ci^ligation of 
granted some time' after the date of the dispof 

* from payment of any teinds, great or small, i 
' ters* stipends, 8ch6oimastei^* salaries, fet]Hd]yit% 

* all other casualties (excepting <;e88) tljat c^ii»J 

* manded for, or may be made payable flff^J 

* lands purchased from me, and that for aij.'f^ 

* terms bygone, and in all time cpmi|af/>jej 
meaning of the parties unambiguous, tJ^^, t^,f 
nee was to be freed frofu all paylpBu;^^ .out^p 
teinds, and of course from augmellt;a^a^f ^ ,Af4 
was given to it accordingly. . , ♦: m 



JLTRT (tV^ET^IOfX. 



'ifl7 



' >r Roxbiirgh'e, the same jutlgmeqt^^^^-^'^-^^-^^^^^ 
r. ihere was a long lease of the iafi(|s c.^Xi; 
lie tack bears, that the teinds are l^f ' ''^^^''^^ 
ilue, and the tenant binds himself n<^ '''''' !^ 
tion aud sale of the teinds during the ?^t*'*'*' 
tack. 1 he titular, on his part, bin^e*''*^^"'^- 
int the tack * to be good, vali^ aivl 
1 hands and against all deadly, asia^ 
pay the cess, ministers' stipend, anjl 
mrdens that are, o^ may be, irapofeefl 
?aid teinds during the whole years qf 
[le construction put upon the contrac^t 
s in the view of the parties that ihe 
ot pay any part of the stipend eilhef 
which miglit be imposed. ' '^ 

uent ca.se between the same parties^ 
ck, the absence of the latter part of th^ 
ing cess and ininisters' stipend, iriade 
^ullce an opposite judgment, the evil 
?ntion of the parties being here irknti 

)le, we are of opinion, that in finding 
le to relieve the defender from aiig-' 
\ve expressly folio v^ the judgmentij 
have laat noticed, and do not oppos^ 
rred to as warranting a dJlferent con* 



—I cotiair In the above opinion, In so 
led on the i>eculiar circumstances^ of 

I do not think it absolutely n(jte.^- 
luginentations be specially wnrrantetl 
tention of parties to include tlieiii be 

Now, I am quite satisfied from^ihe ' 
iTce (ituited in the outset of tht* %^if^ 
hirly from t>ie indtidive ch^k^n i^^^^ 

s the ineaiiiiif of tfhe disp<iilet*s td« fe-' 
Ff ^ 



428 



DECISIONS OF THE' 



r. CutSbert- 
son, '\x* 

Teiwh, 



3) Jan. 1829. Here the pefldicles «lipoTied of all payment 
t imin-hame nature qF teind, arid to lay the wholt* of the 
on the fends J^emiining with themselves. ^ 
words of th^ dduse, besides, could not be i 
apply to the existing stipend, is rendered ce 
the fact that no stipend was then pa)^ahle. 

I am not prepared to say that all the deris 
tie^d in the opinion toe strictly consistent wi 
ethej^» but thi« is HO#ise necessary for the del 
tion of the present question. 

Ijorda Pitmilly and ABowmj. — We would lu 
curred in the opinion above expressed, had tl 
the first case thdt had occurred upon this po 
had we not oonsidered It to !)e rinally settle 
multitude of dedsions of this Court, that wai 
against teinds and stipends does not iucltide t 
tat}on»« 

The'obligatlon ifi th^ present rase is to wan 
lands, S^c. * from all payment of any teinda 
* nisters' stipend.' Now, in the eight follotvii 
we think it was in temiinl^ decided, that a 
dice agamst payment of teinds or ministere' 
did not secure against augrnentatious, and oiu 
are founded upon these cases. It seems x 
(Miry to recite those? cases ; we sliall here nierel 
tion them; 1* Bruee and Kid t\ TIkj Mag 
of Arbroath. 2. Colquhoun r. SmoHet, S. I 
leath V. Marquis of Tweeddale. 4, AJexa 
Dundas of Blair. 5- Stewart p. Robertson. 6 
fj. Lindsay Caraegie* 7. Copland t\ Lord Hoi 
Tjrtistees ; and, 9. Hamilton r, Calder. We c 
that the judgments of this Court in one arn 
Ihe^ cases proceed tipon the ground that war 
against teinds an4 stipends doea not include ai 
latrons, ahd that, tipon the authority of thes 
idons, mi^ny Ick^Witiefiattd transactions were an 
In the firgt of tha above caaea, the Court 



/^ 



/ 



ymTitov.mmom 



in 



e %v »li4TO,i^niMpi all t«in4. aq^ m (be ^'"'^ <^*- 
Btaw to r«Uev« 1 fjpom aU minwtws'ciL'I^e 
muitiesaf the said ipv^ds, as veil as"-^^^"'"^'^- 

«on, &<•■ 

1 tenau bj^iHie or to e<oiiae< mallitiiiae .^ — 
ot the effect of. relipTiniffrow aiigm(en> ^^,^i,,. 

J Stipend, 

ts^ ikat of FlmdQirky»di» ' ihe Coiu% 
algraoiidy found tJguri; it fequirea ^4. 
cefiom agumeatalioM to gire relief 

::a8e^ tiiat of Alexander ageiQst Dqn- 
i express obligation to relieve the disi*- 
nds» and also of all tji^d-duties pay-i 
tfaweafter firopi the Ittnds dispopecl: 
spelled the elttun» on the groupd, a« 
>rt8, ^ that it was noW finaUjr settJied 
f wairnaidiee to be eflSactual ugaivst 
pends must qiedftUy bear a rc^ef 
mtitioD9/ 

?, that ^t Stuart atid Robertson, the di£^ 
Qself to rdieTe the subjects there coa- 
lutjT) ministers' stqwoid, schoolmasters' 
d other puUic burdens^ payable forth 
ing Martinmas then last, and for the 
nd ali years to ^ottie** Jn this ^se 
ands conveyed in warrandice ; and it 
ays, that the. sai^ warravdi^^ lands 
e said relief: in all time epming,' But 
ig^aa it is, was not found sufficient to 
fiom agwnentatiem of stipepd. 
isa, tfmt of Petrie 9* landi^y Qsm^ 
dim is granted to i^eUeve * itom all 
st)f<Ba»dai aphoo^ilitera^ ^alarie^, thi|t 
aSiftBt'tlie Ii^da in time co^ilng; but^ 
nfm\\fm^v^^wm l^Jjaetion of l^nd 
V «#M9<W^'i ^f9m^ W fi?8fr Wheri^bf 



^FfS-f^ 



»Ka>JIs 



4S« 



DBClSr6N«OP..TBB 



2) Jim. 1829i 



Ccmm/Jhame' 
tt. Cuthbert- 



*' the sikbj^te ih^r^y disponed oiagrbefliabk 
^ or other burdetis^ then the Mme mge^io Ik 
' th« said Rdbei4 WUkte and Us imsaids, 
*' hAi/ihg teti>^ne on me Md my istoove wril 
thatH^ngtHlat case the Court were nearly u 
in finding that this warrandice did not appl 
mentations, altbongh some of the J«dges ' 

* that the words in theclause of warrandice 
^ fieient to found a claim of relief agsiast si 
' augmentations, but that the question w^ 
'wise settled By previous dbcisioiig;' Co 
479. 

In the seventh case» of Oojlland r« Lord H 
Trustees, the disponer, for a oeitato parchai 
and twenty merks Scots for tbe teinds, ^ 
them from 'all other burdens, exactions, dei 
^- secular service whatHomever, that cam any 
^di^manded or exacted filrth of the lands, t 
' others above specified, by atiy pnson ok 

* whatever.' Yet this claim did not protec 
]f)oneefl from an augmentation. 

In the eighth case, being Aat of Hlunileon 
warrandice was granted against 'alL stents, j 
' and impositions, as well nrt named as na 
' posed or to be imposed, upon the parsouag 
' carage teinds of the isaid landsfand posse 
' any person or persons whatsomever^ at i 
' hereafter, and that at the handa of the m 
"^ Caihpsie, present orto oonie, or any other h 
' pretending to have, mterest thesein^ But 
clause was found not sufficient ito.relieve fron 
' htetttttion bbtaitted by the minister; . • The i 
thi reportfelr reniarks, * were of opjnien; that 
^^'%as n<!>w completely establishedji thait, un 
^ mentaUons were eiqireaslj^ menticsvei in tl 

* of warran«ic^ they would iiot be^sorarfd by 
being liable to augmentations esc m^mtiuri 



:OIIRT. OffV SESSION. 



l»l 



that^e «a8e of Lard Hopetoun, (3tl -^^^^[Vj^- 

nildaot now be followed/ Cumtiohame 

ars to us that ibti caae of; ;Lord IJoue- " ^^'^t^twi- 

^ ton, ^ (,'. 

(3d July 181 1) did iwt piroceed upon - — 
fat ion of wdnandice thao any of tlu* Jva^lndk^. 
7e recited ; and as six of those cmis^^'^^^''^ 
tertfaat case^ and several of them hy 
that pronounced it, it seems clear that 
^n considered that that case was wrong 
uld not now be followed by the Court, 
pressed in the case of Calder, and id 



sr case brought forward in support of 
question, is that of Law and Bethiuie^ 
). In that ease, it is remarked by the 
udges were of opinion that, as there 
nee of teinds, the oWgation dearly im- 
tdiea against <augm«Dtations of stipend. 
tiningi^he eight cases above mentioned* 
lurt had found that the warrandice did 
^mentations, we find no less than four 
:h there was no conveyance of teinds. 
lave been the case in (1.) Bruce and 
jistratcs of Arbroath, No teinds were 
e ease of (4,) Alexander v. Dundas. 
einds conveyed in (5.) Stewart v, Ro- 
the case of (64) Petrie t?. Lindsay Car- 
-refore, we cannot see any sufficient 
list inetion made in the case pf Low and 
t it waixants a departure fropi the for- 
■ theOourt, 

lly 'conceive that the two ^est ions 
betvffeen . Ker and ; the Iki^ of Rox- 
jponitliei temporary right of a lea.se, 
o tlie'Csaseiof/'an<ab«plute dispp^itjon of 
hild twi^ib^^Sfif : lui^Qgy b(3t>^'ixt tm 
it iaa -aiidt a ; tack«> But; further, (ho 



tv(t^ dsMMiions with iegasi. ^«o :theto» le^tdli m 
tradictcuy, siod caimo^ yre ^Ikiiik, liacroi«ii$r j 
in weakenings the authoxjtj of^he repmt^^ 
aboi^ tefen^ to ; wheveas we : oan^o^. helped 
that a decision in this case, iniaT«&r<^the.d 
plea, would t^Eid 'materially to imsettto tiie 
law which was understood to result firoin a 
decided eases. 



The foUowuig interlociitcff was pronouatced4 
^ thai, l^ the special terms d thefgree^Miit 
^ the seller and the {purchaser of the lands iin 

* and the dauaes of warrandice^) personal a 
' adjusted and adapted thereto, the purs^m?^ 
rto rellere the defenders nf idl ^ngiBented 
^ pdyaUe faHI^ thereof: Hiesefore ixipek the 
*■ of reduetion, assoilzie the defenders ifrraa tl 

* conclusions of the libel, and deeem; fad 

^ SQer liable to the ddfon^ers in exp^nsessf si 
^ modification.' 

fjor4 Newtoth Oribmry. Act* SkcH^ . Tmee^ h 
W. S. A^U. Alt /ameson^ Comajuk^ Hy^k 
bell, cS- Cathcarty W. S. Agents. 



Nd. LVI, V! tfaimary 

LEVICK a:nd Ot«3Ems 

W. CADELL^ 8Q!?8, Aif» OOMPAN 

Bankrupt.— Picre^Jif JttTtrfvM.'^When i^ 
tor stipulates^ an extraordinary preferet 



bURT OF sEeaicHsrv 



488! 



accedmrr to a mhadm^ itmpe^Hi^ ^ ^^'^ ^»- 
mmt be dMsfhic^itmikyimtd ina|»^bWjf lJ^ 
re other cn'ditof^i.4ne^ifd^:fQiitimkr9^^''^^ 
nd, in case ofrnd^nk^iiAtiuifipre'-BankniuL 
onhf stipulated to^iOcmi^^the iegulpte^uT'' ''^'''" 
't he hud pretiof^: at^ir0d. 



bankrupt, atid was seqi^sttvted boi. 
1823. Alessrs Cadell tmA Company 
e his creditors by two UHd, ateoudt* 
t, to L,229* 4s. 54 £»oag;<befi)re kJ8> 
' had done diligem^ uj>te one o£ tfafir' 
arrestments in the liauds ofi Jailatfs 
Cormack, two of Levlck'id debC<M6.' 
Its, having been laid on motte >thau 
►re bankruptcy, Wel« /effoctiuli and 
^ence to the arresters over thci dumft 
tees, ; * 

■ompany lodged a claim ib heyUk'ft 
the sum of hM9* 4id. Sd. ' rebecvilig^ 
for preference secured by mrrestmentib 
r Mr Alexander Cormack^ mertibaad., 
id Mr James Cormack, builder, Wick.* 
' Levick's creditOra soon afterwatiJs 
ite settlement of his estate at a cohi- 
e shilHngs on the pound. The man- 
s Cadellt who attended this meeting, 
ir claim and affidavit, amounting ta 
(reserving to them their .preffereace 
nt as mentioned in said affidavit) With 
eeing to the bankmjtls offer of com- 
3 letter was iii general terms, autho« 
datary to accept of the propose^' com« 
ing to onrseU'es such preference as we 
y arrcstmeot,' Sfc* \ -v^, . - 



4m 



Di!iC!lg*6WS ^lOF'^'BH® 






Cadell, ^. 

Bankrupt.- 
f actum f//irt- 
tum. 



^p6rr tbef^R <ybi4o'Me6far8 C!adell^ w^re^gid 
L^Vic^ 'ato#^ Bift'^tmtien^ifi/ |iayilble^ at iks^ 

MessM .OsidellHand Gompany aft^FWMds^djn 
frdm tfa^ debtors ^f the bankrupt in whoae bafe 
had aifrestM ; ^ey likewise received f«U pay 
the three first instatmeats of the compositic 
When tike fourth instalment beeame due, ^ty 
diarge also for Jt, of which the bai^aipt aad-i 
tioners presented a biU of iguspens^, whiel^ m 
ed for the purpose of trying the question, to 
tent of L.as. 1S& 7d. being the difference beta 
composition on their full debt of h.2S9. 48. 5d. 
t^f^m'position which they would have dtawn^^ii 
^at is, after deducting the sum which they had 
tinder their preferences, from tbe ai»o\mt 4 
original debt. 

The Lord Ordinary in the suspension proi 
^ifefellbwing interlocutor :-T*-* In respect it is 
♦'Sfnd not denied in the record* that the resp 
^ iitipulated, that besides getting the composi 

* their whole debt, they should farther be en^ 
'- draw the funds secured by their preferobk 
*^ ments, and that this was openly agreed td 

* ciie^itors; finds the letlersi orderly prOce^« 

* deceiriis,' &e. 

; The suspenders redaimed^ m\A pleaded^^ 
the *Mfeer accepting the compo^itioj^, in wlii 

• The ret'onl in this case consisted onh* of the siiapensibn an< 
thi char^ts, in the ttrttcr i^apei', appeared to the Coint t** "f 
gHiftiiii xrermekit mexktioned i|i th^ i|^terloi.*vtQrxby.«.i«ference U) 
and afiidavH noticed abo\e, bi v hich the stipulation for the resc 
ftrencc was contained. 



mmr OF m^smsi. 



^« 



ted to the ci^teifri^ir jliA<»i||<»iOf^7^^ i«^^»' 

>refeieiice aa iksyi^h^ iWfWrtillFwW-ijeYkkfTrt^, 
could oiily b#. :midew|gp^i ^o i^farye ^^ ^^^ ^^ 
^ the law f^ye JJfffiniM^^Tigj;^^ 

amount of tl^w 4ej^ ^i *.e. (poFjpm^^''" ^^^^^^ 
ecured by tljBif djligeMS ;; bijtt. ^at» 
they were bc^wi4 tOf dedi^f;! tiii^sais^pA^ 
t of the debt paii^bic^ ^^y/WPK^fifM 
conipositioii ; ^opkd l^t t^ .bil)9 h^^ 
»r the whole ^moHfit,(Pi^ l(fcav#eit 
e uncertain whether aiiy,,<ir wJ^at^imiS 
^red uiider the armstHMmtSv r 

answerecl^^Tbat^iii'^ interlocutor m^f 

grounds stated in it. by the Lpjrd Qpr 

erred, in supp<^ of iU to ^i^ opitiions 

me of the Judges mth^ csm of. Am|I 

iiitgomery, 24^ Feb. 1826 fPac, f^qU. 



Eras unoiumously of opjulon^ tb,9l; tb^ 
argers agreeiag to accept of ih$ eom^ 
t bear the meaning for which tbejr now 

that it could only be held as a rese»- 
egal rightij which they had acquired 
neuts, according to the plea now maini- 
mspeuders. Their Lordships, accord- 

the interlocutor^ and suspended the 

e — I certainly still refnain of the> opi- 
cpressed in the case of Arrol aqd Cqpk^ 
e creditorB in a private composition 
rly agree to give a preference to one of 
he in entitled to take it. But then, 
uiiinary btipulation must be explicitly 
iiictly accepted ; whereas, in the present 



«M 



DBOISiONS OFTHB 



sir Jan. i82d. casfe, it Is full of dmbigttlty; imd it is suiie 

i,evick^&c^v, reasonable to interpret the iresetvation ot the 

cadeii>c. into a fair declatAtfirtiVtkUt;^ dthflugft they a, 

Bankrupt, ftcccpt of the pFOposed composition, they nev< 

iu^!^ ^"*^' Meant . to avail themselves of the legal pi 

which they had acquired, as far as the law T 

low them, rather thli^ to su^ose that they I 

to di^mand, or that the other creditors acceded 

an eitrav4g8tzit bargain, u that they ^houM I 

cd to recover all they could under their arre 

aiid at the saiUe time to draw a dividend up 

whole debt ^ut of the other funds ; an aJ^a 

by which, if the arrestments had been more 

five, they might have drawn even motre than 

mnoUnt of their debt. 

The Lords Justiee-derkhM tHti^^Ul^ com 
fhis opinion in every point 

Ijord AUoway also thought that tbe retort 
tliis case had been properly explained by Loi 
)ee ; but his Lordship expressed great doubts 
'a cr^tor> even in a private compositioa^ was 
to stipulate openly for a preference to hims 
whether such a preference, even though assent 
the other creditors, oould be sustained. 



{,#0^ Qrdinaiy, M^Kemie. Act. Skene. AU- \ 
A. Murravjjun* J. ff^nd^r^an md J. Snodv, 
r, Clerk. ^ 



KntrioF^SEMsionu 



0f^ 



^e&immrmioN, 



1 1 



27 Jii#INi»y 18t8i 
JvAKdWMHXON 
r CAHilKM BUCHANAN. 



%^ owner irf a r^^ervedr^kt ofiofd^ 
tl output jfhm a pafHcuiat field exii 
i '^Kmtityi andfotnUngu iretd hwden 
ef^ijf^eoU, may prevetttihe jbtov 
field Jrm bringing up any pari ^Oe 
fit-iiuMti^beffoiidthejMd, ^ I'V 

n nil ftj^lfo&tUm for an infer^biot in^ 
r, The queAtiob was again brought! 
t oa the expede letters of suspeoBiDnf 
ed fh6t th^ lands of Dundjrriin ;hafl|: 
7 the mithors of the fiusp^nd^rs to ik& 
respondent, utider the following rafti 
at, in case the gross out-put of coaly 
Duld exceed 4000 tons, the granter,' 
d assignees^ should have right to one-* 
le gross out-put of the excess, * free of 
nse whatsoever ;' and that the glranter 
It, at all times, to keep an overseer oi^ 
[le said coal, to inspect the operation9 
above ground, &c. This burden way 
Basine, and in all the subseque9t in^v- 
lands, 

ordship thus established <^me by pro<i 
arsons of Messrs Dixon, whilst th^ 



tan 



CSX}I»0N9 OP THE 



gliuimn. 



^^i!!!^^ prop^rtr<>f part of th^ lands and coal wwaoq 
Bixonsv. Bu- 1^^^ i^P^dent; M^o, by kis tenant, oMiiii€9iee 
^i the DntidyVto coal at a pit^nioath in an a 
estate (Menystoik) ^longing to himself, and 
ject to the lordship. 

The tenant was, however, taken bound nc 
out tnore of the cdUl from Jhti^yvnifi in any c 
than 5000 carts, or abont 8500 tons. 

The piies^iit action was raised in order to 
and interdict the respondent from raising and 
oMi the eoal from the lands subject to the] 
by pits not wkhk) the said lands. 

The Lord Ordinary sustained the rMSoni 
pension; and ccmtinued the inter^ct« 



The respondent recAiHfiaf, and /i^^ — 'I 
terms of the burden on his right, as containe 
infgfiinent, contained no restriction as to-^e 
working the coal, which he was entitled to 
aiid woi^k in the wi^ most beneficial to hinsi 
Vided'he gave the suspenders every fair and 
means of securing their reserved right, whfcli 
ready tp dp, and that methods might easily be 
by which the rights of the suspenders migh 
cure^ without any additional trouble or exp 
that, if there were any farther expense, the 
dente were willing to defray it. 

' The Court, before answer, allowed the res; 
to give in a minute, relative to the method b; 
he proposed tp work the coal over which the 1 
waa established ; and remitted to a profession 
master to report upon the whole circumstance 
proposed works. 

. The report (by Mr Dunn) contained a grea 
siiigg^tio^Eis of methods by which the reserve" 



wwrnii Of eeos^iofft 



«ii 



^d^ wllmut much ad4itf^lj,U'9i)&^ fiJan. nH> 
(Manning U>e out^pjn^ WiWR**^ ^ 
; Imt iione of tbfm .\y<y» j^l^^yy, ^q chc nw^ 
^ who ineisted for a>dgn!ifflt 9U,t^ Ptt^^tH^, 
) secured by the inC^ftme^t^- . 



<rl »•; \( 



dhered to the iQterlpcutof pf tlj^r^ti^d 
coutjimedthekiterdict.., , .u ■.: 
^ remaiaed of ^ the sameopiiHCjn Mrh^ch 
lerly expressed ;-^the J^ordjs Jifs^fi^ 
niUjf thinking that the suspei^dej^ h^ 
the coal, which they had «a m^viiA 
md ; and that.they were^ entitiied tp^have 
impleaieiited in tb^ terms ^ ^,tfie< dii^- 

09 thfwgfat that ail ^jlistm«Gat ii%ht 
suie^the intemst of both parti^s^. i^nd 
was mititled to enforce svoh iMM^fWgfEh 

se (who had noibeea prtf€99^at t)|efdi9- 
case in the Bill Chamber) conqunied 
} Juatica*Clei;k and Pitmilljr. ^ . ,, 

Cringletie. Act. Dean of Fac, (MoncreiffJ 

Alt. JefreTf, Forsyth, Tait. ' ' ' Tdd 

, W. S. and George Dunhp^Vf, ST k^xM, 



!s 



■■'J 









149 



WBCISI0N9 OF Tim 
SECOND DIVISION. 



No^LVIII. 



S8 January 



Mtis IlAJSH^ER AND HEit Husband 

against 

JOHN LAING, 



an afieUoM^Jurmiiure^ having allowed gegu 
> articles, helemghiff to a third party ^ to be se 
place qfsale, aha there puUkhj mld^ assoilz 
mn aetim at the imstance of the landlord^ n 
used seqtiestrmlio»f for restoration of the ^ 
their mluei; the d^^knder having given tin 
ance, and accounted for the price, without j 
any. thing ^t^ sequestratiom . u/iin* 

I4AING5 beiog emplojied to coTiduct a sale hj 
of the furniture of a house in Edjnburgli, 
]diu;e upon the 18th May 1825, was requests 
gcqimii^tauQe, the day previous, to allow aonie 
of furniture belonging to a third party, Watsc 
broiight to the place of sale, and there dis]] 
alongst with the fumitiire of the house. The 
alluded to were accordingly sent, and sold^ in 
aence of Watson, by Chisholm, an aiietion< 
ployed by Laing^ The prices which, after de 
of the ordinary auction charges, amounted t 
6s. 9d« were banded over by the clerk of ti 
aloi^ with the other proceeds of the sale, to 
and by him paid to Watsoni who granted his 
forthesaoie. 



3URT OF dfladfcws^. 



441 



liture had beep aequestr^tea sopae 28j;|n^- 
he date of tlw? aale for the current Harper, ^c 
)f L J2 of a house occupied by him in'^^"°g\ 
eet, belonging to Mrp Harper find heriS<r^ue«*rfl»;dfw 
t arrant of sale was obtained on the gSd 
ce^ding to ex^ute it, |t was found that, 
?j tlie whole fc^iture hftd been re^ 

premises- 

J trustee and factor for the proprle- 
petition to the Magistrates of Edin-* 
Watson and Laing^ dnd Chisholm^ 

wMehj after narrating the sequestra- 
— * That before the petitioner had it 
XJ carry the wal^djit of sale into e/- 

Andrew Watson, in contempt aa4 
egtration, did, |n a most illegal anU 
loner, abstract and carry away th^ 
uruiture and effects tinder Beqtiestrar* 

view of defrauding the petitioner of 
leposited the greater part thereof with 
Fright, and John Chlsholm, stnith and 
Edinburgh, who, according to the pe^ 
rtnatiou, disposed of the same Ht a ^al^ 
place on the ISth current in Howe 
Lheir joint direction and manfi^ementt 
equence of such coUusive and illegcd 
e part of the said Messrs Laing an4 
^y have incurred a joint ret^ponsibil^* 

said Andrew Wfttson for paymeqt 
gear's rent aiid expenses due to thf 
tides being liable, jointly and aeyerally^ 
ith AVatson, in thus aiding a^d assist* 
oniinit a ilagr^t breach of s^teatra* 
rarer of the petition, therefore, agai nH 
^hoIm» is to. ordain th^nt' to restore 
d articles^ or, failing t}}e\r d^ing B^, ^ 



iik 



BBdSi&NS OF THB 



* find them, jwgl&y ami severally, liaUe tc 

* tioner. iot paymait^ the half gear's re 

* penses above i^feiwd^ or, at all events, ic 
5 of Ihe wtides d{8ik)8ed of/ &e. rirffnC) fn 
. ' 141140 and Chisholm averred ttiat thejr lie! 
nor could be in collusion witli Watson to i 
}>etitioner*A Hgfat ; for, at tbe date of tlie 
were eiitirely ignorant of the sequestratioii 
not evan hhy previous knowledge of Watson 

The Magistrates, tvithout refjuiring a 
found Laing itnd Chisholni liable for the rei 
was less than the price of the furniture) ai 
penses of process. 

Chisholm, it was said, died in bankniii 
Stances ; but Laing brought the judgment 
View by advocation ; and inaiutaiDed that, m 
toothing of the sequestration when the sale t 
and had also bona fide accounted to Wat^^c 
price of the flirnitture, he couM not be Ital 
breach of sequestration or the value of th 
on the mere ground that, although he was 
possession of them, he allowed them to In? di 
ftt a public sale of which he had the superint 

The respondents, although they made no 
itVerment on the record that the advocator's « 
in point of fact was untrue, yet inferred cull 
ituda fidee from that statement with otliei 
stances* and particularly from the fact (not 
that the advocator allowed the furniture to be 
to the jriace of sale, and there sold, witboni 
previously made any inquiry as to whether i 
was not attached by sequestration, 
- But,^ independently of any avei-ment of nm 
actual <wr cpnstructive, the respondents conteu< 
tbe admitted state of the case was sufficieiii 
title them to recover the goods or their val 



umi^xiiiirjmmsmL 



ub 



*.':off; «idria''««^^ 'lit )h^«' not 

urfdtt of' the aaiMi faitd^ dedbni^ *t 

m reclaimed ;-^biit the Cdui^ by * 
Itotheinterlocutoh"- ' i ^^ 



tkeni^t the liit^btf titer rfglit; Th^ 
* ttMriBMifd frtMfn wiiteK h^'^old 'toKs 
niH^ge of the s^tt^tratimi ht ^e 

1 «ware tif the arCkles beifig seqUl^d^ 



M>i. 



F wai^ekarly of the same^ bpfoiott. 
Ined no averment that Laing kxiew^ 
[on. Besides, it did not appeal tfitrt 
KysS^ioh of file fUHiifuW. 'j ' 

^t*6ndidered this a very seriptts ciisd. 
fauces a nexus which gives tfa^^l^d- 
Mow and recover the sequestrated ar- 
rnrbfen or rural tenements. It was 
HHH^ fraud or colhisioh t o the party 
S thegoddshav^ been triced. A con- 
^ttd' endanger the landlord's security, 
tpeeta fit - iSiiia ; for boir feasil^ may 
tmfS''^ fifm on^ hods^ to another, and 
^f^'SitppHiiilalkig had acted 1mafide,[ 
t^tte^r^Toh #as gone by his interfer- 



444 



DEClSIOMBi OF TBE 



ence. It is said that the famitnre was 
Laing's possession. I cannot understand thii 
undertook the sale of the i^tidiJflJHHhe emp 
auctioneer — and the latter could not have ^e 
furniture te sale lAiIess with Lmng'a auilioi 
though I think there are dbrcvmstances of i 
I agi^ee wttb tiie Lc«d Olrdisarjr that Lain| 
iedg^ of the sequestration » not sufficMnt!7 ii 
But I hold, notwithstanding, thait^^ by oecei 
goods, and authorisitxg the aaleof tbeoit Lah 
took the responsibility and r»k <^ their beia 
trated* 

Lard JtMtiee^Clatk w« of Qphlim^ H^i 
Glenlee and Pitmilly, that it was necessary 
Ihat Laing was in the knowledge of the seqi 
--^ fact which was not prored, or. erw »TeKTt 
jreeord ; and theve were no vcircAmttame^ in 
whidai warrant : the . respeadentTs hfiferenos ^ 
collusion with Watson. Latag was not Hm 
of the goods, but merely authorised the sale 
After they were hroi^i ta the jplace of «afe 



Lord Mackenzie', Ordinary.. 
John Gray, W. S. Ageiit. 
Fac. (MoHCveif), Cmrtyle. 
Ckrk 



For Adyocator, Qf 
)?0T Respondents. 



. .. i'. /. 



mTAQwasamoNi 



445 



BJST DinSION. . 

81 January 19M. 
)EBfiON tftd iher Husband^^ 

-^A married w&man who^ prefriaui 
\ had beea aj^pemted caratrix fxmtfl 
ippohtediothaticffiee after her mar-- 
mdjbidmgcaiiiia9^jbt her iniromie^ 



tpeii fke dcatli of heri foianeF hu8* 

had . bosB appointed eMrmkix borne 

ido\r, who ww in a rtate of liMntal 

hebSLtMatt^iwl whMlicr the office 
Gdlibjr herieedod'iMnriage^ and she 
from pesticnkur eircamstanoee, best 
office^ a petition was presented in 
ncnrrence of her husbackl, for her re^ 
h the uaufil. powers^ she finding, of 
ition^ befoxte extract, in terms of tl^e 



?f intimation of the petition, and no 
been stated hy any of the relatives 
tninated and appointed the petitioner 
tie, witih the usual powers, her pre** 
ajrs finding eaution for her intromis^ 
the Act <rf sederunt; 



Gg2 



T, 



446 I>BOHaBN«X>F TUB 

' » ii.ihi!N»h'»)iii tin 

SECOND DIVISION, i liJ 

Noi UL- <s L { ,: 81 January 

PRINGLE tUiALsaa) 

againat 'i^t^ u^tltiiiA % 

M'RAE. (^'"iM oi\ 

W4liPrSR^HEEDlKOv-^PuSELlC POLICE. — %TA 

c. 11.— 2%w aatMe is xxpj^cabk to skeep^ 
Highland diHricU. (v\Jiii.iOMif 

pRiNGLE and M*RaE were the tenants of a 
«fae^p»farm8 in the county of Ross. The £ 
longing to the former, being negligently herd 
found frequently trespassing^ on M'Rae's far 
on the 9th July 1824, ninety-two of them we 
^n his ground, and poisMk-folded by his \ 
They were afterwards all let out, except si 
lEUid four lambs, wfaidi were still detaiued ; an 
applied by petition to the judge ordinarj , foiii 
the statute 1686, c. 11, for warrant to sell \ 
taiimals fdr the st^utory penalty effeimig to i 
ty^two^iecfp wbidk bad be^B poiud-folded, an 
expense of their keep, &c. The sheri (l-stifast i 1 1 
that the act of Parliament did not apply to i 
mountainous distaricts; but that the dainages 
ed by thei^ tteqNUBSea mighl; be recoTered at 
law : He, therefore, reserved the petitioner s 
recover the actual damage d^^tie by the tre^pr 
^uoadultra^ disiitisaed Ihe petition, a^d fouiii 
party entitled to e^plnisesi < Both parties ji 
agaitisrt this judgment ; but^ in the meantime 
poinded^ffk^p'^v^iert^tMei^ Thesfaeriff.de] 



lUIlT OBtlSBBBiQa. 



447 



oeiitor expressing an opinion decided-^^ J*"- '^*•• 
be judgment of Iiis substitute, andp^^i^^if^ 
statute cttrtakiiyvexaftded to High-^'^^j^ 
ut, being precluded from giving any ^i^f^ Hwrd. 
prayer of the original petiOM byythe ^^^.^ ^^^ 
)] Tided sheep, of which the petition *'«^- 1*'*^^* ^ 
rant of sale, heonly altered the judg- 

M'Rae enfttkd to his ftill expenses, 
[ited a bill of advocation; and the 

found that the act of Parliament is 
UB case; and to tinlf wte^t remitted 
B sheriff sisqpikiterV butdireoted him 
^ of some of the iidviicator's altega- 
the sheep which had committed the 



r reclahnedf and pUade/d^^Thait the 
tatute WBA only to prevent prejudiee 
planting and inclosures ;' and that its 
h require that the ownei!s, ^ in the 
ill cause keep the same (/• e. the cat- 
uses, fold%: ot enclosures,' &:e« are ut- 
ible in an extensive sheep-farm fn a 
t; Govan r. Lang, 18th Feb* 1794 
The analogy of the stai. 1661, c. 41, 
fing by cotttarmiHouiS heritors, wbi^h 
inapjiUeable to extensive districts of 
in point to the present case; Earl of 
K Garioch, 16th June 1784 (Mar. 
I Cassillis 9, Pateraow, f»^ Ff.b. 1809. 

tent ^^mf'«n0«^The:fitotjate requires 
of tlie catttei &er ^hall either derd ^or 
so as they'fih^ net eat'or des;troy 
Lirs' gr(lluld,^&e« ; tiod the eomplaint 
taikd toi^kMti^se -jtis-sheeg in folds* 



448 



ZHBOSMONS OF THE 



91 J&n*i8^ whiich'isiiot required, but that he did not k 
PHngifou sufficiently ibvAedt g» a^ to prevent them f roii 
M*Eae. gj^g ^^ thei a^cAuiiig fcrm ; Loch r. Tw 
fTfntor Herd^J^y 1799 ("-MoT* 10^1); TurnbuH I?, Co 

p2iflc/w«, ''®^- 1*<>9J «»d Shaw wd M'Kenzie t>. i 
SMim^c M«chl80», 

; ?^^- 

7%e LarA wtoe unanimously of opioioi] 
statute e^rtended to the present case, and re 
n6te» 

Xordf CUenke sald-^That the provisions \ 

lequiring effidei^ hbr^m; were evidently m 

eable and useful in a wide uninclosed dlstrii 

a part of the country whtee there were inclo 

The other Judges concurred, 

' ]liOTd Ordinary, M^Keime. Act* Cumng^m% 

Alt. Sol,'Gen* ( HopeJ^ A. Wood, Cnnlngh 

W. 8. and Jav%e9 MoiodoneU^ W. S. Agents. 



No^ija, 



FIRST JDirjSJOK. 



3 Februart 



JOHN EADIE 
JAMES HOW, 



gence an the fart qftke creditors ami comn 
Wfa se§ff^^0iti(mi ffuinot relieve t/ie cm 
the brw^eejjfhift Uakifitg. 



fmttr Off imsum: 



44d 



10 (m/t]tfe.'n^iiei*rate# leMs^ ^^^^^ 

• YMftO^^ iiutttfS Wirttdfl W«B elected Eadie ». How- 

i#tiiereepo]fitent,Jfttile8'H6w, became — — 
r^be Mt8&6of L.lOOOj in the ustial '''^**'^* 
Lie folfilmeiit of his office^as^ tni^cje^ in 
t of Partiament. Watitm afterwards 
it» amd tra^ fmm>xeA from his 'office of 
nv to liid removitl, aH a^ai^M^atf ctti hud 
the Court hj: boxd^ of the creditors^ 
luid rcooTered a Irnktu^xif 'L.l6tt from 
ae; Huit be had ablo^BoU samebevi^ 
f ihe htnkrupt, and haid recovered^ the 
10b; bat that he bttd not cmnigtied 
LIDS in a tamk, in terms of the act yof 
d conduding against him for consign 
sums, aiid foif the penalty of 20 per 
f the statute. Decree of consignation 
ition, pronounced against Watsoli, of 
ms and the statutory penalty ; upon 
came forward and consigned L*100O 
at of his obligMion as cautioner) in the 
d, subject to the orders of the Court 

jr been elected trustee on Watson^s rew 
d the present application for warrant 
ve ccmsigned sum. This was o|)posed- 



at he was liberated from all obliga- 
ond of tJautibn^'iii respect of the gross 
:atutary duties and remedies commit- 
tdrs/^a^'thenr comibl36|bner8, in the 

aiTi^crHfiW, Where creditors ne^Itet to 
I requisites bf^ bahlbrupi act, vt^hich 
the express porpo^ of eheckiug any 




*» 



mmsifasfm^iima!' 



\: r 



(kmihnen 



1^ ' r 




irautinneniforla tiNft^ee /vfoti^tsail^MM 
0fitlieamtQllBi9ldmrB hoinitig^ by iiittttnfithifiiu 
pf fdse^iscctedts gvv:ea in b)r u fruBtee^ Tm th 
case^ tbew Jiod been gneat iiegkct Mi 4he pH 
oredkoiB > oc GonunisdkmieitB iD^ feHooriiig; o«ft -^ 
gitoB0fidi&6«atate; Tile crediAoi!^ «d^Mt^ ^ti 
cail > meetings foe deetion of eommissioiieraj ^ 
90Edgiiattmi or deatk of prior aontaDisdonersM 
midsioneM had not eieamiiied the transaictida 
te^tiitee^ 6r made any» mport <te^ the eredit^ 
bald pQ {meetings to obtain the vidtce c^the i^l 
bad iHade no appointment M( the tnstee to^ 1 
mmey m a bank ; noc fixed upon a batik i 
such money was to be lodged. Neither ksad 
omined the trustee's books or accoukitSy nor' 
him to make, up states or schemes with* a t 
dividend ; aoc was any general meeting eiAlec 
termining on sudi dividend, or for bringing 
fairs of the trust to a close. They had alio 
trustee to^ uplift and retadn, without ahy d 
lodging in bank, the different sums upon Afrh 
clidrawas rested ; and^ in^partieular, the coniM 
^hd hetitaUe creditbrs htid subsiirilled a dispd 
A 'pttt^faafier of hiiiritiEdiie^Befperty, inwhicib't 
flir.600) was acknowledged to hafe been ito 
<h€ trustee ; and yet they gave no orders or ^ 
ill i^ga^ff fo tShat 6nfti/&r k pei^ed of iCBoittr'l 
UEKmths. ' Tb^ creditors, therefoi^^ liad mit ifij 
^tte' vigifaiiti*, those checki overthe ttttstte&^i 
Wintuie Mdpttt ih ihcSt p6We!r ; and* Wd*^ 
'theit fetatutery duties to a greater and' itaoreli 
Hittefrt^than fead been drtie hiiMimiA »f fUt 
^tifdi'^therefai^rtfee re6{K>1d(dent; as tatitfoner,' 
leased from his obtigatioiu 



^umoi^fffiWBnGRi 



431 



Caulhner, 



if/tlwi'i^tkOTii^jiQifitiitt j^ ill the£adj^ t^ Howt 

&ld,[beaatt$e 'Ik&dsf^ of that 

mfpty:to<Afif.pm9mt4 nln itbat case a 

d bwn :p(imtmt£eidrfa7:)iS«^^ false 

LO aU^fatbn/iSlftlvitkMldj was made 

ivifisiQliesft ter^ l^Sifilxrer there is 

fftoct 4a. Ibe. part od Hie) qdih m ission- 

a* to Kicmse iitte riakjof jthe cautioner, 

u : BM ,that < w«8 . not > th^ case here. 

ifiet¥ed the eodUziMBiojAerB m to the 

them: to soppose tbut no funds had 

and tbat the prioe. oi Hm hentable sub^ 

irerted^ It was imjiossiUo* tlierefore» 

Ijkgped that tibera wepe. no funds, to 

e's aeeounts^ or to require b\m to pre* 

^ a dividend. , i^i^'i^utn 

ronere were, theSrefore, deceived hy the 

/vras jnat agi^nat ench conduct on the 

e fcbft caifttion tras required* 

pitr-'l co)i$}deiiCfd thepQipt uf law aa 
that the case of Duncm f^ Porterfield 
^. ; The distint^rtion i^, completely es- 
f^ aipere ca^tion^r for #. debt, and 
the flj^ perfpriQancf; qf ^ pfHce* I a 
tlJ!^qoerfeaMW^PIHK>rt^I^<ty;9f knowing 
Effd ftu^j \)^ Gonili^iqg. hiinself, Sup- 
'{for ^€lerkp£^ jiifP^l^-rn^^.i^iik would 
^, 9fm^m |o. «ffn»W *i*eir books 
iff^^ tp see^jKiF^l^l^P-ttreflKfinLipal was 
dutjTrf^it^fnlly or not ; a^dt therefore, 
jWhqqe en?ploymenVtl}e prjpacipal may 
IfiW^ «f i^^ vig3anc?, ^does not in 
E^lai*ilM^ .)7i^en U^y .pqcwr, the cau- 
]}^V^ , ff^jw J )u|si oh^igatjon. In the 




m 



VBCm&mOPiTBB 




9 Feb. 1820 sttine Wfty^ In the cade of a seqaeBtnttioii, tlie ei 
^TT ^3^ for a trustee does not know the proceedii^s ti 

Eadie v. How. , i . 

be goin^ on in a sequestration ; but he is em 

Cautioner, y^jy jj^^ ^jjg ^jejitors and conubissioners will < 
duty; and if they fail in that, they may lose 1 
lief agaimt 4he cautions. Therefore, th« ariilf 
in the case of caution fmr the faithful perfbm 
an office, I consider as quite settled ; and, oonsa 
the only question in this case is. Whether th< 
such negligence on the part of the creditors aj 
mlssioners as to liberate the cautioner. 

Lard Balgrdy,-^! entirely agree with yoii 
ship on the point of hiw — ^It is quite settled, 
n^gard to the facts, I tJbink the trustee deoei 
creditors and oommissioneri9 all along. Hedi 
iiang in his power to conceal the funds. Tb 
not that negligence on the p^trt of the commii 
or oreditors which could liberate die cautioner 
were deceived by Ute trustee ; and it was just 
such conduct that caution was required. I, tb 
think in this case the cautioner was not libers 
go ^nHrely on the facts of the case, and hold tl 
of law settled. 

The other Judges having concurred with Lc 
grfty, the following interlocutor wa8{>it»ounoed 
^ that the respondent, James How^ is not reiiev^ 
' his cautionary obligation by the alleged neglig 
*- the part of the creditors and comMissiolierSi f 

* respondent liable in the expense hithiaito m 

* &t ; hnU as to tbe iuttouirt of tilie p^i^ler^ 

* remit to th* Ldrd Ordiniuy. » 

yoif Trustee, Cock^i^m^ Cunittghafnen . J. Grei^ 

Agent. Alt. Dean ofFac. (Moricreiff^J Jann 

•' Bill W. Horsburgh,W.kAgknt. £[. 



fcnanT cwmmasL 



4» 



'ir 






9 Februarf i9»S^^ 

WPEWART 

againit > . : 

^LOCK OR BLACKWOOD and 
HxjsbaHD. 

I^jDfidprt^^ of Aground float ofm 
iM$ent divided into separate dweBinge^ 
\gt6 dijfi^ent praprieiorii eaoh having 
^ 49 0tetr reip&etivi parte and porthke 
mtdeecribedin their titles^ ie not theesc^ 
rietor of the soliiiD, or ground^ ontekkh 
t is built; and, thetejbte^ dmm^^aea^ 
rtorey qfhie own authority, 
itiire of the Joint interest whieh the pr^ 
e in the parts of »K€h a tenement^ of 
ate the common use f 

\ the jmiT^ietot of the grtater'partof 
^r, and of a pordion of one of the upper 
^nement in Ol&dgow. Mra Bladkwoofl 
! of the greater part cf th^ upper Bterfies, 
ai^cenfiO" under the cotnihon atair, and^ 
the p(Mi^ 4>f the^st and ^ieeoudMo^ 
mmediatefy abo^e 'Mr iSt^wartf^ prdi* 
ground floor. Both their rights weM 
the a^meatithot; ahd thffeif respective 
rd^atribedin their tlties/as * parte and 
that great tenement of land in the 
f Gflasgow, sometime ago purchased by 





'4M 



jmcmem^oTfTKB 



1 



9 Fdb. Id29. 



Jilackwood, 



^ John Adam/ and tying and boondisd^ &b; il 
ii0ment7 became 'ruiiiaiis^^iicl was taken down i 
hj auth^ty !of the Bean of Guild. ' t ; rr 

^StMnart prt^siMt to gire in b plan <td the X 
<)rutld to have it rdbuilt, lirith a niidci stai^ 
his own pari of the building, to behing emdnaij 
hiihself ; and Mrs Blackwood having (oi^t 
Inrought an action of dedamtor^ to have it firim 
he had the exclusive property of tlK Wn «i 4Nrr t 
wfakh his own part of the grouDd<4Qor<of tl| 
ment' was built, unda: a servitude oneris fort 
fevour of those having property in the uppers 
tthd that he was entitled to have a sirnk. store 
vided H wiai built aeoording to a plan.to* he ap 
of by the Dean of Guild; vridi the walls of: au 
vstrength to support the upper stories, and vi 
injury to the proprietors of these by . nisiii|| 
higher from the ground thap they jiad been 
He alleged^ in support of his claims that all the 
in the same street andoeigl&lNmrhood Wefiet noi 
with sunlc stories, . : 

I M The defenders objected, firrt^ The tetiou . ^ 
competent or fit tp be ^itertain^, being an ai 
to originilte in the Court of Session, by way ^ 
*«daratep, a question whioh ought to be disposed 
the Dean of Guild > Coort ; Magistrates . of ^ Stir 
aheriff^lepute, Nov, 17S8 (Mor. 7fi84> t . 

Secondly, It is ill founded on tiie .merits, b< 
both by the terms of their title-deeds, in the f 
ioatttnce, aad by the rules of i law.appMMUei t< 
«w;t«Miw^,^e juroprielofs of th^ vjffmi^ 
Me joint owaerstofth^ soil^ on wbi<^.th^ teniw 
budltvalong with the prbprfetoriof >tk^ goonn^ 
JSr^A. ii. 9, 11, 

V /.^h^ Lord Ordinary ^ vepelled the objeetf dnvi 
^'^(m^Um^f 0l tfefe action ; but^ odO ^tke «teri«ti 



oaSRTiof^Aetmiots. 



M5 



le&Acni Mooibiied the defeHdeWi And ^:^|^^^ 
eatiDedr to expemet ;' ^nd^ Iid<te4. to hia stemrtv. . 
e foUdiriilg note /^* Tto piiiww?e yi€«r JWt»M# 
I of ibe partits vtsfveeti^rafy ^^eei^a^too — r— 
te tnifli of the ofls* : i^Uts) He ^hae jwo- ^''^^^ 
dusrw title in himidf t(» tbe«er/iii}ii and 
rio iteceMit^ fbf itii bdong^sng to thetfiM 
ftnsuppiy the place of such tille^ 4Ml) 
^ aad stalls which are commoil^ itouA 
of the 8iif£ace of the grou«4* Hiyr 
It be said to be the pursudr'9 exdoaiiie 
iid,) The defender hm been bilberaa 
ritfae second Jrtorey^ &c. above the^Douod^ 
dctt of having vento and chimnieR fottoj^ 
\ Is this jnropertjr, without cdnsidem- 
ihanged into a third atorey, &c« above 
vrith'tiie burden of vents for two stories 
ao, it may equally be changed into tife 
tk stoiey abov6 the ground* WiitlL;adffl- 
^jnm in proportion. .After this was done, 
9aer might dispose of. these -stories sepa- 
Bferent^partiea, so that the defender^ ia- 
ing only one proprietor of a flat beloiwihcr* 
twoor threes or four scqparate proprietors 
ler her^ all and each having as lomoh 
aidat the defender, >as the originals siiif^ 
Q^f -the -i^ound-dlfit bad. The LQrd:Or- 
(Ot g^sofar/ « . : 



m^redaipied i^^hut tie CW^ uuianiiiioas- 
Mserving to the partiea to apply toi>tiie 
liM to have the tenemtftk rabtiOt, oiii:.a 
maibriaed 1^ hoin, i&cairdii^, to law/' < : 

ileerfh'hbCmfAieriv^ wi^tber Aie:' inter- 
dlibuxuted» iw« m\^ attend to the ccm- 



.tti 



DECISIONS or jfTHS 



BUckwood, 



sFeb. i82». elusions of the ptlr8tlal^'^ BnaiiiiQMr.. ThroiA} 
St^TXT' tioii raised before us in, whether b& 19^ entitled * 
a decerniture in terme. oi !hia:iib^.thtit fae is 
sive proprietor of the M^Mi <m whkfa Utf ij^trtt. 
house is built. It is Tery likely, tbet be nuCyjb 
in saying that there ottghtto be.<aMtfdLeter^ 
this building, if it be troe^ iasyfae isf 8# tiuitc> 
houses in the street hgv!e oiab ; wA be eu^^Mii 
entitled to compel the defender tooooewirit 
in an application to the Dean «f QuiU to ba 
tenement rebuilt on a pldiv^to be eiatbetiMd^ i] 
magistrate, with a sunk et0i\^ ; bat be dearigf i 
do so on the footing on whieh he pbttes it i 
libel, of his being sole proprietor oftbegMu 
which the house is built« 

The %'ery form of the titles ehews dutt this i 
he the case, for all these parties are infelty aac 
be infeft, in the ground, &3fr iimir respedire iut 
To be sure^ it can scarcely be said that the right 
the proprietors of a cominoii tei^ment have j 
ground or walls» &c« of the common subject, is a 
property in the ordinary sense of the wurd, be 
in that case, none of the joint proprietor could 
any change whate^^r, or eqnduaive lue of the co 
subject — such as, for instance^ hanging up a 
or affixing a name to the common entry-i-f-wttho 
consent of his co-proprietors ; but they havie' ei 
them, uevertheless, a joint.intevest ani properl 
generi% m the groimd and in Ae whole subject 
It may be very prc^per tq reserve jto the purs 
apply to the Dean of .Guild ip have this teHeme 
built in the way he wanta it; butitca&iiotbedi 
the footing on which he places it in this sunn 
and it would be premature to decide on _' any 
<lu^€tion that may arise between the partiesL *" 



^/ 



^ 



COURT Q^^8$miQS. 



Ant 



Property, 



The int^o^ntar is quite ^gbt sO|^ewartt^ 
; and all that ui necessary way he to'^^^ood, 
^nratioit m Lord Glejalee .h^l^ fMroRo^^ 
le partiea to apply to the Deaa of Guild 
lement nebuUt QA a ppopet plaxi. The 
ibel fxroeeed? upon the tasimpt^n t^at 
s an ^iclusite right tOt Ibe solum \ on 
meiit is Imilty aitkoug}! it . ia admitted 
lo oonveyante ^ it in his titles. We 
3t decern in the deekuvtery conclusion 
as, nor iuLfliiytepsfahision which dep^ds 
mption. 



Ird. Alt. Dean ofFac^ (Mmicrerff} 

€. Thomas Darling and A. P. Henderson^ 

/•/Cleit M 



l 



EdoND Difistoj^: 



'■ ' i 



I 1" 



j'l 



5 February 182^, 



DALfe 



t II 



against 

t/ikBARTON GLASS Work 



.'V il 11 



; pOMPApY, 

> SEEVANT.-^— Foreign. — ^-^ person 
f ntmself out as pound by a contract of 




rl 



liy a contract of 
/6r a certmn period of years^ 



>iu5i.V' >/'j'K 



m 



DECISiONSrOF THE 



5 F.b. l89i. 



Bnle f^. Dual* 
barton Glass^ ' 
\Vurk Co. 

Matffr and 
ServanL 
F&reigm > 



^W? Mllffifgi ^^y '^'''» repre^efdation, inducei 
^ihCqlfpiiltiy t<> enter hito an arrfingement 
:iltfus(emj(Pf Rnglandy by which kU servh 
. ]tr^f9iffi^0d to Ihem ; and havhig accepted 
m^npyjfUf-pa^ymefit in advmice qfpar^ qf^ki 
' Ismdf ikei^eitfier having commenced ids sen 
^JSfcsfttiih Company: Found that lie ua 
tif eomphtt it for the whole period of his 
with ih4 English Compimy^ although no wn 
pOff^iet^en him and t/ie Scotiisk Com^ 
uobich a CGHfraci qf\wrvi€e could hate beei 
fillAfid in thh country Jbr niore than a single 

DALE Wa&/<|riginAlly d servant of the Du 
GIabSf Co9i|wny, and thereafter entered as 
maker ji^to t^e service of the Nailsea Con 
BfisipL . Hi^ %fterwards wished to retura to S< 
and (uQider the pretence that Ke could not wr 
nift^^ m^^tOf Iti^ friends to write a lettei* in hi 
to tlie mafHaipsF of the Dumbarton Glass Woi 
qi^irii^ if ' tbef were in want of hands, and wo 
him employment. This proposal was am 
ihe vcmmgery io whom it was addressedi oflerL 
employment nt^ their works at his old wages» 
tera<)a4ed 4th and ^oth August IS^. 

J^ale Aoknow^edged these letters (as.hefi 
means^ of hig friend) on the 28th August, sayiu 
he had igjiren/liis present masters a month'^ v 
to qiiMi -^PfLadding, ' But the manager, prev 
' n^y ffS^V^gi-poiii^e, asked me if I jiad any o) 

* to,(Cpt^fwdg^hack to Scotland in tlie room ol 

* nr))^^ liBi^4fttff]iy Irft I said I had not ; ami 1 

* me ..bf;. ^ Willed write to Mr Dixon i-egperti 
^ ^ui^-^n^frder. t^ lose no time, I iuunediatel; 

* notifi^ a^^bcfve, as I particularly wi^ed to 
^ Yoti ijrtli therefore fully expett rae; but, kf< 

: u 



JfLi^ 



^Ki^Oi^idfiilisrc^J 



4>^ 



Biid it was tlieK dtedid^A tli ttt r i^ 
T &m Company for seven yearB^^^Jk^n 
It emne to them; by aiaUi^ct^of CMo. 
tHer was in court at the thnd, a^d t)i^ 
. Yon will, therefore, 9* that I csferiot 
^' &c. Dale's service with the Nailsea 
jbmmeneed in Septembtf 1819. ^ 

Ittdedto in the letter of SMh'Airgttst* 
El who, bang tinder an engagement to 
tertOn Olass Company fo^ seven yeaiij 
I d^Bertad their "scrvto^ and gone into' 
dlsea Compalny ; and tlie Mr HiitWer 
AeiMt letter ws^ a siteriff^oflto^r t«4io 
ba Bristol by the Dumbarton Compctny 
I to reclaim him^ 

d, by the evidence of ttuntei^ and ^f twd 
f of the Nailsea Coiripanyi that, after^ if 
mlnedi)yaeoiirt of jusHcte near Bris- 
that Dale wAs bound to eotrtinbe in liis 
f 'fer sevrar years,' an arrtogeiYf ent was 
bfs request, by which the Nftilisr^ Cohi- 
i^gmalb his disdhHrge in eOfisideratioti^ bf 
i OM9{)any Waiving ail clailn to th^ &i^- ' 
r^Siliis; ahd^Bfle agreed to eomfAMb 
.ttot«i> o# lilk «;^i^tract with the Nailsea 
le iiiMde «f thfeDtoibftrtkm Gra^^(^lj. ' 
Mllf9^ Um\n' aUt^ice'A^Oih tfhe D^^ ' 

lieneed working with tliein ; but, after 




1. 




4«0 



DBCISIONSOF THE 



barton Gbws- 
Work Co. 4c 

JIfemiermid 
Servant* 



*Z!tw*' c<>"*i»"i''g li**^ '"•<>*'• t'^*^ ^ y<^^^> ^^ left 

Dalev. Dum. '^^j and eateredlnto that of 11 company at \ 
The Dumbarton! Conipanjr then cited biiii 1 
mary eompkint before the sheriff^ prayioj 
should be ordained to returB to their servii 
comi^te die teifin of Sams^ eDgagemetit with 
tioners^ or at least to servie them until the 
his (Date*s) engagement with tlie Nailsea ^ 
The sheriff, after aUowing a proof, prunoi 
following interlocutar : — * FindH it establi 
the defender did, in Oetol^er 1823, ente: 
engagement to serve the pursuers, the 
ton Gloss- Work Con>pany, for tlie periud 
expired of hiSj the said defender's, term < 
with the Nailsea Glass-Work Companj 
county of Somerset, being for seven ye 
mencing on l^h September 1819 : F 
this engagement was entered into at the 
the- defender; and that for the purposes 
and in terms of the agceement of panles 
eharge of the defender from the said Nail 
pany's service was purchased by the pur 
their ireleasrng James, limits from their sen 
vouF of said Comfxanyy ^nd the 8mn of 
paid to the defender, besides other outlay 
pursuers on his account: Fiud^ that the 
came to Dumbarton ia terms of his eo^ 
and entered into the pursuers' service mc 
nad continued therein till the date of this 
Finds the said engagemenut binding on the < 
and, therefore^ decerns, and ordains him m 
utum to the pureaesps' service, and to 
(tkerein, axid fulfil, the duties thereof^ uiit 
ijpiry -of said terni of* seven years trom i^a 
Fmds the defender liable in expenses of pJ 
which allows an account •& be given iui 
cerns/ _ , 



XyURTJ QFiSBSSlON. 



yjsi 



lie expenses^ modified to LlMSl l(h^ fid: M&ifJ^^^ 
e Dumbarton Company gave a charge ^J^» ^^"^ 
)crc^. Bde Sttspeiided ; awi the l46rd - 
uioed the fMlowing! interlocutop^^^^^*'"^ 
marff &c. findfl^ in tetms of (be find* ^or^v^ 
srldentoref the eherifi; dtted the j^th 
36, with this addition^ that the Agrees 
;he suspender and charger^ took pla^e 
' the law of whieh it appears, that au 
aerviee duirag more years than on6 
jtd by oral words^ if followed by ac*^ 
naent of the servke ; and» therefore, 
. orderly proceeded, and decerns/ 

* reclaimed, weA jdeaded—^lMy Th^ 
petitioners is irrdevantly laid, in so 
I'OB an aU^^ion that he engaged td 
mtrakct with tbem^ which is an iireler 
laving it found, as is done by the sen- 
ff, that he was birond to complete a 
service^ vis. the period for which he 
I own t^ontract with the Nail^ea Comr 
claim is grouadlese ; because^ by th^ 
a contract oi service for a teirm of 
r: constituted by writ; and it is;not 
ply the want of ^ii!iitii^ by any other 
y Ae oath of the; pftrty. The admis- 
ity or a ret imMrfi^n^^are Oinly>susr 
ctofiobligiBgiHmr to serve for on^ 
er,^ being the ntmost length . of \ time 
Id bmd i»niflelf4)y a verbal! contract ; 
;r«A Jnne 1749j KUi. r^A&r. IS^416.) 
nsadrcby ' the Lord Ordinary ias to t}ie 
^ktxmt latrthoiity) ; and thei Me|)6Dder 





462 



DECISIONS OF THE 



^^SyiJf ' ^^^ thaMhi5 Jaw iif^thiit.rCfmp* 

Woii.Co.-&c 



MatUrm 
Servants . 



cpi^p^^t.ifei^allteniatiye for itDplement ^^^ 
pend^ either 4>f pirns' period ot^ service i^itjL 
^rs»^ or of his own with the Nailsea C^mip 
they have only been found entitled to insist fc 
t^r conclusion. 2d^ Writings did pass betwee 
ties; ^nd, even holding them to be incomplete, 
in this case, been sudi a rei interventus as 1 
either party from resiling from his cdntrac 
B. iii. titi 2, $ 3. Sd, The bargain was mad 
land where a verbal contract of service for 
years is*binding, provided the servant h^y 
into the service in consequence of it ;. StaL 4 
a 34^ ^ 3 ; and personar obligations cocntracj 
form authorized by the lex loei conipacfut 
ing every where ; Ersk. B. iii. tit 2, {40. 

The Court unanimously refused the note. 

Lord Glenlee. — ^The formal objection to tl 
the libel would be well founded, if it had 
that the suspender should be obliged to com; 
period of service, and the sheriff had found 1 
only to implement his own contract with tl 
Cmnpany ; but, on looking at the complai 
pears that the account of Sims* contract is c 
duced narrative ; and the conclusion of the ] 
alternative, that the suspender should be ( 
either to implement Sims* period of service 
' least,' that he should be found liable to n 
serve out the remainder of his own time witli 
sea Company. The judgment of the sheriff 
fore, within the conclusions of the libeL 

I know nothing about the law of Enghind 



OURT OF SESSION. 46S 

HIT in >-^M-^I \r:' Lji 

>rdiiiaiy'8 view of it be correct or not, \fi^ ^^^ 
^^^sifficient evidence itiat Dale hdtf nate^-^nw*- 
abarton Company that lie was ib6ui3^^^»i«^^ 
the English company, for a term of 




^ toiost, therefore, warriarit hi^ Wn^J^ 
and I do not see any reason why the^<>»'*<^ 
f this contract may not be proted like 
ssi)ecially considering the rei interten^ 
iken place in consequence. ' 

y. — I am quite 8atis6ed ^at this interi 
founded. I agree with Lord denied 
sthing in the formal objection to th^ 
when we have got over that, and come 
proof, it is quite clear that the sus« 
ously enter into the agreement, men- 
ial, with this company, 
to what the Lord Ordinary has said 
ngland, that has reference to this par- 
Vhal the general law of England may 
ntracts is nothing to the purpose ; biit 
fore us sufficient evidence of what was 
he law of England in this particular 
trhat this man himself represent^ to 
ded, and by which he is therefor^^ 

^usttc^'Cleri; and AHoway f^ncurted.' » 

fftekehxiir Act Cuninghams. All. 

«w., IF. Alea:ander^Vf. S. and A 

iS! ' r. Clerk. 



\, !..:,.,. •.. .y . 


'•. ' ; ^■■' -.r i"'^-^ 


\^<a\ l-rr^^ •' ' 


■'■ ■ '* ''''■.• '^ '■ 


•li! iVvr. ^••} '\ , ",■"■ ■ 


■ \ r..^rr;... 


ejii u> jit -'T^ \, • '..^'i'" 


'[ :■ . i-./ ) \\ la 


(fil ^jifi 'ii.) >^ii(Ji-ii.''.!.f •) ' 


!' ■.::h ff /.-mA 


[rl 'i«> '^rcA i.h Vif j'^^ -'•• 


' ■ :•; •;.....! 1 









m^' ' 



: -A 

I 




i;H 



DEQISKDNSr OF; THG 



SECOND DIVISION. 

No.LXIY. SFebruan 

GEORGE CONDIE 

ALEXANDER STEWART. 

Implied obligation, — A whscriber to 
road found not liable beyond the amount ^ 
scription, although, Jbr some time, he took 
part in forwarding th^ undertaking, and 
public meetings which, with his apparent 
cence, directed their committee to proceed 
work, and borrow money fn* that purpose, 
parties were aware that the sums subscr\ 
quite inadequate to the completion of the r 

A meeting of certain proprietory in the c 
Perth (24 Nov, 1818) interested in a propo 
pike road between the village of Dunning 
Yetts of Muckart in the 8Q^le ^ounty^ ni 
^ committee to procure subscriptions for the 
Vof proceeding to make the aforesaid fo 
' out delay ; and, when filled up to the ejcte 
' estimated expense, the meeting recommenc! 

* committee to procure from Mr Drysdale 
< specification and section of the road, and t 

* to advertise for estimates, and, when giv 

* call another meeting of those interested.' 
At a subsequent meeting (27 April 1819) a 

of the committee ' stated, that the preaeat mei 



tmilT OF filfc^lOW* 



m 



: the purpose of icohsidering what fur- ^J^^ 
be adopted ft>r carrying the pi'oposedcondie©. 
xecution, as the subscriptions, notvitb-^^ ^^'^' 
xertidns of the committee, have not yet impKed Oba. 
At the same time, the subscription pa-^*'^'*' 
upon the table, from which it appeared 
mm subscribed amoimted to little more 
' but it was added there was still a 
tiring su'bscriptions from other indivi- 
likewise stated, * that, while the com- 
ed that the whole amount of the sum 
aking the proposed line of road had 
bribed, still, from the very respecitkble 
ivhich have been received, they are of 
de object ought not to be relinqukh- 
ded in without delay, even although 
bscriptions should be procured from 
;rs ; at the same time the committee 
uggest to the meeting, that the {)re- 
rs shoidd agree to become bound for 
, in proportion to their original sub- 
*h unsubscribed surplus being always 
referable lien ott the road till the satiie 
paid up,* 

tement by the committee, the minutes 
e meeting, after due deliberation, is 
)f opinion that the work should pro- 
delay; but, before advertising for es- 
leeting instruct the committee to em- 
•Hson, or any other able Engineer, to 
oposed line of road, and to report to 
^, if the line pointed out by Mr Drys- 
>st advantageous that can be adopted 
lienee of the public' 
ferther instructed the committee' to 





/mftiw.QW,,A^!Wsasr fti>*i»^«>*WpWftt tl«?=Jnfe(»ori|)teBii« 

The committee afterwardg met (Slst Oetofe 
^;6f^|ipif^f( ^ wakUi^ tte read, m^ bni 
bridges, ' having- been deliberoteljr coasid^ed 
30iKf4>t(0 f^^^ into an agreement ^wit^ cm* 
feii^ Ijcfr ipwt, of the work ; a^d the dodc n 
e4.j|$>;prepare a. draft of a regular ctrntrt^ 
l)|e^lt9. jtlie, firrt g^eirai meeting, 

.^idjB^ftofitliM «(N9ti>act vaa accoKBogljr ( 
tOt-^Ho^^fSffQveicf b7i a general pieetingr*^ 
$cribe|8.(Uth Feb. IdSO), vhodirectad. itti 
n)HPiicate4 to the road oontraetor; * 'apdji 
'^oy«4 of by him and, has ctoftwrnKi Ja b* 
^ JEoiie: apotb^r. meeting of the tnut^as lor.t 

* approval.* It appeared* hovever, that th< 
tff^. jbad. already dc^iifed the contactMi . to. c 
os^tion^ ; W of tiiii the meeting vtunim 
pi:ov^. The minutes of this meettngcovtai 
r^f^ffw.te^ the clerk * tp pake ovtt- aiHev!. lawl 

* jpfyper, ,tO;,be si^^ by all the gevtketncnice 
< aijic^ cpnt^ning a clause bearing tIwt>iiA jeu 
^ rflefijci^cy for completing, th« roAd» thi^ «ni 
'■ fbp,-niis^jjiB(by t¥i?»MT*«f8 iaprejusutio 
« xf «jj^jf ft {(ub^crij^wu asi.reiSoilHnevfle^ 
^]9Hni^te|9f,4ftt#,th^^^7th ABTil,l8JJ|.'u,ji ., 

,^^f ^ii^i^a,,af,tW^,l^t #ieetin«.^lit^^ 

' ft,srec^t/foin ;a banlf *)if ;^ j»»roiftf,I».6<KH) 

* pVJfFP?S.c^;carfyin|[.pj;^,tbe.wc^.ia»iis«ti 



DVRH'OFVSIMISm 



m 



V. 



r,l 



kit a.baikaawMl'W&^.8(^<eaibi^faidc2^ 

propoFtktu tai^oSr i^fiitm&W)i 

opi ^mi^ut^'&at (he defend^ i#ist9 

of a resolutioa of 9 subtie^fibiit rteetfatg^ 
^ 0ll^tbi8 road (38th Ai^iiat ISiBK^ tibe 

viMcb thd previous meeti]^ had under 
ras obtained from the Perth Ba^tk^g 
I acocytaaee of ^certain of the truBt^^ 
riheir treasater. The deftndefiraa^ 
ider the local statutes^ td be a trustee; 
sonnnuiucated to hinii he did not at4 

giibgeq«eiit4aeetiag^ all of whiefaajph 
«B. ofmreiiB^ a« ;pieeti|ig§ V the tiluk 

ISrf m» then prepared for ezecntioiii 
bficrib^rs tQ the road, obliging them 
itiiMt oi^y of this loan, but i^of 
(Pfiinns shtmld be required for ediriH 
1, bridges, &€. in proportion to thekr 
inA aahBonptioite. The defender itt- 
be this^MmdyOn the ground tiiM he 
igBiio^gM&on to doeo ; mid thttt, front' 
fraddedaml to him, at a meeting tif 
attikkriiFSAnM. legally qualified, on ai5^ 
Alltoia'of4i9B vidued rent, t6 be a triis^ 
Borth^int^^ or eoneera in the r6^ 
^^^omplMed at Whitsunday 182f ; and 
mfeetiiig' of; tfee trustees (SQth April 



t 



^i 



tOB 



jsas^mo^m ow TOB 



Condie o. 
Stewart. 

Implied Ohtt* 
gatiofu 



^^^i^' 18C3) itappewed that tlie debt agaioittlie 
about L49SOO, aiidthat the stibscriptioBBfitil] 
ed to L.8609, ^ ^xcltusive of certain donatiei 

* ed to be given hy individuals towaiids* A4 
^ of the road ; so that there arose a faalaa] 
^ ^arte of L.5600 to be paid in the meanti 
' subscribers, over m^A above their t^spiM 

* scriptions/ 
Condie, as treasurer of the trust, raised < 

against Stewart, concluding for payment 
ISs, 9d. being his original subscription at 
ponding proportion of ibe above deficiency. 
The pursuer denied the defender's aveno 
at the first meetings it was stated thM the 
expense of the proposed road was about L.S 
affirmed <hatj even at the date of the seeoni] 
(27th April 1819) no such statement had b 
nor any assurance given, to that effect ; on 
trarj, the cost of the road and the amount o 
setiptions were then matters of mere conjee 
the defender, in particular, was aware of tb 
ther, it was averred that the defender took 
part with the meeting of the committee of 
October 1819, although not himself a memb 
justing the agreement with the road ex^ntm 



The pursuer argueA^Thai the minutes of 
ing of the 87th April 1919, as well as the si 
conduct of all parties, shewed that that nieetid 
the proposition of their committee, that^iesi] 
should be bound to make up any deficiency oi 
the proportion of their driginal subscriptions ; 
it was only on this footing that they resolvied 
Work shoiild be proceeded in withtnU; •delay 
the dsfen^r's liability,' to this extendi was ^ 



OURT OF SESSIOlf. 



m 



ris signature being affixed to toy n€'k \^^^'^^ 
lining a clause to the abovfe (Effect?. ' Thfe condle v. 
by the meeting of the lUh^T'^iiiary^tew^rt^ 
rk to prepare a new subscriptidn pape^, implied q^h-, 
e^ was, therefore^ unnecessary, hbweYet^^'*'*' 
easiire might have appealed with thb 
ing any dispute upon the subject. Bef-i 
me res non erunt integra with regard to 
Previous to this, he had sanctioned the 
the L.6000 by the committee. An 
also been entered into with the road- 
d the defender had assisted in adjusting 
le road had likewise been begun ; and 
id voted an approval of the committee's 
horising its commencement. Farther, 
resolution to pay no more than his orl-* 
ion was not formed till the road-con- 
:tually received L 3300 for the tvbrlc 
ing to the doctrine laid down by thfe 
8 in the case referred to by the defender, 
presence at a meeting is not enough to 
party a pecuniary obligation, his acts oS* 
of wliat was there resolved upon will eU 
him- 

8 of the various meetings, having been 
by the clerk, are unexceptionable evi-^ 
res gest^t as therein $tated; Ogilvy r, 
'Edinburgh, 6th Feb. 1810; Morisbn 
! Burton, 8th April 1719, RoherUtrtCs 
,249. 

er mmnfetined — That the mintites of the 
tie 27th April 1819 disprove the pur- 
on as to the adoption, by the meeting; of 
a of the cumiuittee, that the subscribers 



tX9 



im/m«s^fiowiWUE 



Stewart^ pce3f i«g^I%ffiDijt0lu<ri?ig opiJ^Q* iW ttiis poiut 

^""^ thafethfljaxfcsfrili^siiM to gr^i^^ secii 

thiet linw^Jllit jpf titeir ir^sp^ctive subsfidptions* 
eit»)fir]||^ jl^jTi ibfs /dlr^tion of a 8fil)pequeiit 
ti^A ili?W: pttl^^edj^^pa pi^^ 8hoi4d be n 
containing the obligation in question, * to 1: 
' .ISfr ^l tb« gi^ntl^n^en; cq^ceme^.' TJie defend 
a^bsfiiiril^, aq J o)[>ligatipp, of ,thisr land, nor 
UMyQg'Fhij^rt^ iQpi;M i>^ ^eld^ taiitfiiqoiint toi 
9irrip}j#n. ^Q; \f as^nqt a member: pf the com 
the sub^qi^ibe^ ; fipd J^e attended tlie meetii 
31st October 1819> founded on by the pursu< 
rje^p^t pf soqie of the m^iibers, who wishec 
t}^ b^e^t pf i[iia lodd infcuTnatiop, .and to 
^¥i<t^ l^is i¥r^gi^^fi|} in some mimr arcfiiigemei] 
]^H)Uf)|[^eirt^l( toc^ryt Ilip^aiever as 

^i^^ng.th^ pQntr^t: ^t^ tihei :^drContraci 
!^J^ejt^asfinaUya^usted and signed, an 
t^f^ Jpam /was c^btc^nedy b^ had c^fis^ to atJ 
nf^j^i^^gSy; or to, talc^ any copceri^ i^ .the road. 
j^jppi jy^it had been undlerstood that he w 
^^^.fpr j^Qite. ,^^n hi3 sobsqrij^ipn^. in case 
swffs^^wpl^mpl^ted were car^cKi fori^ard, h 
l^fii^ ][^^.en|i^^ to resU jti^e befori 

t^;^jgatip» wasi?igned. ; ^ ,^ 
^.,,^j^,tbft;pqi^^itfe, 5l^-G^^ 14^8, i 

tiff^^l^,;^ nn4; thfr, gw«Bral ron 

ffifiWc^^f-Pr:^;!^^ «Mb?^ 

pretext, foF^ft^yjeWft f»^|^!^iV^,^to;^%m 
bound themselves as in4jYl^WJ«r v^vSya\. -x^iWi 
Mere presence at a meeting, of which the 



r * 



9(sokTxyw/«amagf. 



*n 




nffi the House of 'Lbi^M«i*Jly^l8l6^'^^ 
rh« inmutes itt'tike' pi^«s«ti««tt9«(k^r& 

f u{i> from je«tings e^eir a<;ihW9fie«tA^ 



II i^i 



ii.'':7uov 



presentation ad t6 tbe amditnt' df-stlt)- 
^ by the committee to tb«^>ib«^tfBg'df 
er 1819, would be sufficient t<3^ W*i?atb 
oni^tbe obligation whidh it is all*eged 
that mee€[tig' iiiiposed upbn MHi. '' ^ * 

■dinary assoilzied the defeiider frdlBi ttii^ 
hie libittlgned Sum Of L.iOO, ^iVi^' ^ 
IsBbscHption ; and fte Gbiitt adWWfl; 
J^tce^Cil^A Was of opinion ^MV^B§ 
icMnpIeteljr failed to make out' ft Jifik^ 
feftaer. The minute of th«s STA ^A^ 
[ umbte recommendatioii dftKe'doy- 
the ttie^ing 'did Dot thAse to ^tfcf «*; 
to commence the wwk Was h. ^Mice 
sons would be induced to come forward 
fonis. It was evident from the direclSAW 
f of llttf February 1820, as tothie tiiai 
new subscription paper for t^^Mui^,^ 
I ftlt'that they w6re hot h!^^rtd'b(nkid 
mk/V: of thdr Tt»p>et!at& 6\!aMiffp\SiMM! 
t MkgeHay' t& go tipob Oie/ ^laiiseA ^f^ 





urn 



jmamumsiOB tiik 



Itord^ (Rn^igbiki, (Miomf, For- Pursuer, Skene, 
^Phm ^piPitadmy W. S. Agepte. For dcfcn 
ofPac. (MoncreiJT) Jameson. Alex. Af. Anders 
A^m. T.CleA. 



FIRST DiriSION. 



Ifo^LXV. 



6 Pehruary 



WILLIAM WATT 

against 
tHOMAS GLEN. 



Sals.^ — tn a sale o/" wheat bff sample, the pt^ 
upon delivery qf ilie stocky having ohjecte 
M^sinfertor to the sample, but not having 

, tQ receive deUvery^ andqfUruardsy when in 
or redelivery was demanded^ havings agreet 
io^the bmrgain, Jbund t/uU he was not qfi 

. : enfUled to resile, or to r^use payment of i 
om the ground of the inferior qHality of the 

Gii£N purchased a pwcel of wheat by sample ftt 
through his ageot, James Tannoeh. The stock 
Iives3ed two* days afterwards, aceording to th 
inent of iMHitiea^ at Hjawldlead Mill, and a 
taken by th}^ sdlerfroia the miikr to the pu 
Sfloa aftefwaida. Glen, on exMkiiuing th€ st 
jedt^ tfaatit was taferiar tO' the sample, but 
ofiBsr; tb give it baek> but; allowed it to rei 
Hantftdcbead Mill. Borne .days ^afterwards, Wj 
theJageti^ who bad eondHCtedithr sale to k n ow ^ 
GUn was to keep ithe' wheat vTJT not- The 
which Gleu, in his declaration, gave of whal 



DOltRT OF/SSmiOBt. 



am 



Lsiou w;^ as foUomra: 
ed on the declarant, 



and. wished to^ 



Watt V. Olen, 

leclarant would allow hxrn > to^ say^ to the — - 
he would gire up the bargain for the 
stloU) and the declftn^dt then said hd 
» but he, Tannoch^ mi^t say he ^ould 
largain ; and Tannoch went off: That, 

the dedarant^ in a few minutes after 
1 Tannoch, dnd got him in his own 
^ Street, and mentioned to him that 
need not say any thing about it to fhe 

he, the declarant, had thought on it 
»uld keep his bargsdn/ 
rought his spction for payment of the 
beat. before the magistrates of Paisley: 
m pleaded that the stock delivered be* 
tbe miBfile, be had refused to accept of 
le case of goods purchased 1^ sample^ 
sk i» iliferior tO' the sample, tibe fntn- 
vdy: entitled to refuse to take delivei^y; 
I of damages. 

damticm of the defender had been talonr, 
]^ the magistrates pronounced this in- 
Find tbat^ on the 7th September 18S0, 
[libited to the defender, by a person act- 
f : of the pursuer, a sample of wheatv 
ursoer alleges he delivered to (ibat per- 
^.purchaaer migiit see its description 
. that thfe . defender kept the wlitde>of 
biUtedf oir rather it was pBist thimm 
hap^aslMiBgirtally of no. use/ because 
a to be ;>examiaed lat deliveiy^ land ito 
leticriterioni for Judgment : Find^ that 
ftraa&iiiied afttfiaJsrkfaeadMil^ wUtikeir^ 
bid^isaiyi6dl)k <wi tiiei^hil 8e|rt^^ 
defender^ mad /that attliia tiinetke<di^* 



iH 



DECISIONS OF THE 



-^ ' ^' * f^&nder did not acquiesce in its qualitf, bin 
Wftu V. Glen.* to it a8 inferior in that respect to the smri] 
' that, at the time it was carried to the said 

* proved to have been in part moulded and 

* and that the sample does not appear to 

* so : Find no evidence that the defender 

* the stoclc M'ithout reference to the sample i 

* terion of quality, or that he refused to alloi 

* suer to take baek the stock after it Iiad be 

* the pui'suer at the nrill, althouj^h the defi 

* he would keep his bargain : Therefore, 
' the pursuer has not proved that the d< 

* bound to pay for the wheat, the price of 

* claimed ; and assoiUie the defender accordi 
' the conclusions of the libeli and find th 
' liable in expenses,' 

\ The pursuer advocated ; and the Lord 
pronounced this interlocutor; — * Finds it pi 
' the wheat in question was sold Ijy sample 
' bulk was inferior to the sample ; and th 
' fender^ in presence of the pursuer, objectei 
■ that account on the day when it was de 

* Hawkhead Mill : Finds it proved and adni 

* the defender refased to return the wheat t 

* afterwards when the pursuer required hi 

* up the bargain ; and that it is not allegt 

* offered to return it, reserving his claim of 

* Therefore remits to the magistrates witl 

* tions to assoilzie the defender from the cc 

* of the libel ; but to find no expenses di 

* inferior court : Finds neither party entit 

* penses in this court/ 



Both parties having reciamed-^ 
• Lord Bal^fty said — This was clearly i 
sample. The law in such a case is plain. If 



covR'B^n^mBmum 



475 



Salt, 



B as t^ teiiipte)^4llw>^u#cbdbdip istty re- ^ ^^^' >^^ 
it. IriiHt^XM^^ llie*t<^tefiiflier' Alight w^^^n. 

^ been tef^Hbfel i« <he>M3Mt!if{l^y dMHough 
d at the WiU-bytte^ttgftwni^n*^ both 
if h^ had itttimateid tki^^lii>^0 thne, 
uld henre temtAned at ib& milt At the 
suer. But, illdidugll he objeciedHo the 
I not reAifle to' receive the 8t6ek ; and 
his d(idaraiioD/4liat w^o^e 4<iys after- 
the piirsaer WHt 'to know if ^ he Was to 
; or not, heat laM said/ that he would 
rgain. H^-had^ th^lref<bre, l6dt the op- 
therwte^^ ifiight'hav^ had of Mtorti iug 
d ha cttbaot nowrefiisepajrilieiM^^^^ 



ig ioterlocttt»r*ntf8ilroho«flced i-^ Art- 
use ; r^u^ltft i^c^iniing'ndte^fbi'the 
altet tht|iiirterkKm«0r¥e6laifn6d^a]TiSit, 
L tenm^' the 'Uhfel; find^ Qi^Mefeftder 
lenses ; reserving to the' defender any 
age be^ vhiEf ^ have agaihst die pui^uer 
e sale o£ the whea^ in queJBtion^ and to 
lis defaneed'air d£<^rds/ 



Agent^^ .' For Djefendei^ CQwan^ 



irii/. 






^>^. 1:1, 1 



li 



i f 



/ >: 






» J 

^ 



«76 



SSCaBONS OF^ TU£ 



f ■ i ■-.■'• -I ' • f* »- ^ ff*r< f '^^ 

FiTA^r DiriSlON. 

■ . \ '. '■•■'.' . 11-1 -r ' 

Jffi. J«XVI. • Iff gl 6 J^e6r«« 

T^RlWll'y.HOlSBE OF LEITH, anb C 

MAGXSTBATEBcr EDINBURGH, ai 
. MSBSl(MfEttS«£'j[^ITHI^ 

havings heem appnimiedhy statute to carr 

■ imtim^ fmf^lk.fMrkf^ound that neithet 

dies nor private parties, having an ink 

campletim of tie uaorit t<?^^ mtitled to 

€ictio9mg^inst4i^fmg fp-emnpel them to go 

. , lutj^h eoffirarff (q ^ neeoliUion of the Con 

; Mldi^g 4t Jfie^y^efdi^ t^ do m, nor to 

: mtt^ ^Igm^ Ihemfofr the alleged delai 

Ttt© M^iplaratep ^Etoibiirgli, as propric 
iBprt sn^ hi^bpiutf* irf J^th* h a vi ug expended \ 
«um in the erectjk>p .9/ j^ wet docks, whit 
jborrowed from individuals upon bonds, obt 
^vef lUQOot a Imq of L.S40,000 for payiii 
bonds, on condition of giviug up a piece of g 
payal jviffiri^ i^mg Z per cent, interest 
l^T ,9f>.a4iwpced» with an additional 2 p 
|(l5^nt^fui(uiL (^ extipctioii of the capita 
ranjp^pjBp^l^.w^cfljl^^^ through by the act 
, q./lPI, ., Thfij j^??^,^t ^outaius certain an 
fp^;^4hj^ej:g^tioBiJ9jF^^ ij^^y pier to the east I 
. gfetr^^,^^^.^9^^,]l^ west by the N^ 
In the following sessioQjof Parliament^ anol 



COURT OF SESSION. 



vm 



Geo, IV, e. 105) appointing certain com- *^^^ '*^ 
in number, for superintending the in^THnUv- 
F'eraents in the harbour and docks of^^}t^f * 
ed the previous act, and referred to the Magistrates 
ut to be entered into by the Magistrates &c "* "^ ' 
' Board, by which the MaHstrates #ere 

^ ° TiUe to Pnr^ 

\ expend on the extension of the eastern ^ue. 
^sponding works, a sum not exceeding 
le Commissioners were appointed for di- 
iters regarding the maintenance, repair, 
ent of the harbour and docks, and were 
ntend and direct the execution of the 
d settled by the Navy Board, in regard 
m of the eastern pier, 
big last act was passed, the Magistrates 
contract with the Navy Board for the 
? eastern pier, according to a plan pre- 
Ihapman, civil engineer. Estimated for 
e afterwards procured, and a contract 
actor was prepared and signed byliinl 
Commissioners. The Magistrates of 
«wever, before signing the contract, were 
the Navy Board had declined to exiecute 
r. As they considered that the extetnioii 
pier, without the erection of the western 
t only be useless* but injurious to the 
presented a bill of suspension and liit^- 
lie work proceeding in the meantittie; 
tiled whether the Navy Board wer^' to 
?m pier or not. The Court allowedtfce 
?d to a certain limited extent, but ^>kds- 
ad ultra f and granted the intcrdid^/^^* * 
unistances, the present action was raised 
ord Provost and Magistrates of Efliia- 
linst the Wet Dock Commissioners. ^Tfce 



«7* 



OECtSlONS OP THE 



g^F^xm^ pUrsii«« of tbeacli6nM^€*e, 1. The Trinity 
Leitji; and! James Duticah, David Gourlay, 
! Brown, it» master and assistants. 2, The O 



Trinity- 
House of 
Leitb, &C. V. 

M&ffistrates of Triiffickers 01* Merchants in Leith, and Jo] 

of Kdinbumh, 



nOBtoPur* 



' master. S. The Society of Ship-owners of Le 
Scartb', chairman thereof, and the said Jar 
and o%hets, members thei*eof, for themselve 
viduals^ 4. The Magistrates of Leitb, as n 
and ihastera of the four incorporations of L( 
5. James Baimsfather. Scott, Robert Phill 
Reoch, and George Cricbton, as individua 
character of heritors, merchants, ship-owner 
=dfer writers in Leitb. The siimmons narrate 
tntes 6 Geo. IV. c. 10», and 7 Geo. IV, c 
the contract entered into between tlie nmgis 
the commissioners of the navj% and the contr 
work, and th^ suspension and interdict at th 
t)f the magistrates, whereby the work had I 
rupted; and then proceeds, that it is of Tital i 
to the interests of the shipping trade and coi 
the port that these improvements should be 
with i^^itbout farther interruption, and thatgi 
ges were daily suflRered by the pursuers from tl 
plated improvements not being carried into 
The summotis then concludes against the co 
ers, that they should be decerned and ordained 
to proceed to the execution of the works, o 
foiling to do so, that they should be decern 
daitfed to make payment of L.i20,000 to the 
in' name of damages occasioned by such faili 
tt^ concludes against the Lord Provost ai 
trates of Edinbui^gli to implement and fulfi 
gatious incumbent on them by tlie said m 
liakn^nt^ and that they shtmld be decerned an< 
to desist and cease hindering, troubling, or 
the said commissioners in the discharge of tl 



3 



:OURT OF SESSIOIf. 



*7» 



^hat they should pay to the pur»WFS ^*'***' ^*^ 
in ages, besides expenses of process. Trinity-: • 
ig preliminary defences against this ^^'•f^l'^21 ^ 
n in for the commissioners. > Mpgisjuates of 

luers have no title to insist in this acr^c.^ 
t that a popular actjoa is not corope- ^. ,"~~" 
the pursuers have not shewn that ^iey*us. . . 

;o interfere in tlie matter libelled. 
statute 7 Geo, IV. c. 105, the power of 
, directing, carrying on, and completing 

therein mentioi^ed, regarding the bai?- 
is vested exchisively in the commission- 
^pointed ; and these commissioner's are 
o any control or interference whatever 
the pursuers. And in carrying ou and 

operations, the commissioners are en- 
?ed bound, to exercise their own discre- 
totime, according to the circumstances 
ur, without being subjected to an>"5.uch 
rft^rence, 

rates of Edinburgh also stated similar 
fences, objecting to the title of thepuX'- 

so far as no evidence had been sbewa 

being corporations, and also that, un- 
>f Parliament libelled on, the pursuers 
f insist in an action against the defen- 
nieut of the obligations incumbent on 
acts. The agreement had been entered 
commissioners of the navy, ^ho alome 

pursue for implement, asidt for j^^c»^ 
i of Parliament ; and, in particul^i^^y^tli^ 
md the L.SS.OOO from, the; defenders 
d upon the pursuera, but .upon qpm- 
aed by Parliament ia i, the body pf.l^e 
raiuers* therefore, a^d . lUl. Rtim^ ^ i«»^ 



486 



DECISIONS OF THE 



* *j*- 1?^»- by the very tennis of the act, excluded froi 



-f^m/ 



"<g- 



TrinHy. 

i^Tth^'&lr The pursuei-s then gave in an amendm< 
^lagUtratcB of libel, to introduce as pursuers * James Dum 

4c ^ "^ * * Scarth, and John Hardie, for themselves, \ 

""^ — . * sioners for managing and directing all mai 

«M#. ' gard to the mahitenance, repair, and im 

• of the harbour and docks of Leith.' 



To this amendment of the libel it was ol 
the Commissioners — 

I. That the amendment is incompetent, 
it would entirely change the character of th 

II. That tlie pursuers, Messrs Duncan^ & 
*^ title or right to insist in such action as tl 

for themselvetj as individual members of thi 
sion. 

For the Magistrates of Edinburgh, it was 

I. Although it be competent for a judge 
summons to be amended in regard to son 
statement omitted or erroneously expressc 
amendment can be allowed to the effect of ii 
new parties into the action. 

II. No party can sist himself as a pursue 
the Consent of the defender ; Jeffrey and < 
Blair, 27th Feb, 1822; Magistrates of Edi 
Budge and. Co l6th Dec. 1824. 

III. The powers in the act of Parliameni 
ferred, not upon individual members of 

mission, but upon the whole as a body ; ! 
they are authorised to pursue or defend in 
of their cjerk. But the , pursuers do not 
the body of conimiBSioners, of whom they fo 
small pari ; and still less are they entitl 

. jtheirtselveis as pmsuers in an actioil in opj 



^ 



COURT OF SESSION. 



m 



mmimioMTs, who are ali:9fdy; ipt^p^^ er^i^ 

Trinity, 

the objectioDs to the tHiO ^n^.the?*!"^^ , 

the amendment of the Up^ thep^rMafifltniies 

of sdlDbi}i]^b| 

rent Bets of pursuers hav? ,iU a direct -~-" 
completion of the work ordered by th^iv^. 
lent. The Tri iiity-House of I^elth has 
^ged by statute as a corporate body, 
ious important powers and pri villus, 
•igbt to draw a revenue for the use of 

1 by a rate imposed up<Hi .t|ie t^adf^ of 
ey elect three niembera of the parli^ 
iiission. The Merchant Cprnpany or 
Lelth bare also been acknowledged a^ a 

various acts of Parlianient; and they 
5 members of the commission. The So- 
owners also elect a member of the com* 
[ some of the Members pursue as indivi-* 
e magistrates and masters of the incor* 
eith are entitled to sue, and be sued, in 
he senior magistrate, by the 8th Geo. 
besides these^ there are different indivU 
^ In their own name» all of whou^ Ve 
Led in the port of Leith, and are suffer- 
f the delay in carrying the act of Farlia* 
:ution, 

tied that a libel may be |UBiesnde4» ^vez|. 
rial points, at any time before litiscon- 
er in the narrative or condui^ions, or in 
character of the pursuer ; Laird of Mel- 
ars of Old Meldrum, 28th July 1716, 
p. p. 1788 ; Earl of Home v. I^cd Dovrn, 
+, Wd. p, 1789 ; Huttons r. Gibson, 
I24t House of Lords affirming judgmj&nt 
of Session ; Stmr, B. iv, tit. 23, f 91 ; 



i 



«d» 



DOOIflSGBKSiOF THE 



'nI^^-I!?' -B«»*. B. iv, tit, 9S, f 81 ;, Sheriff of Tev: 
Trinity. Lord Cranston, 24th March 1630, Brawn 



House of 
Leith, &c. V. 



p. 1787; Waddd r. Lawrie, £4th Jan, 17"; 



M^strates rison €?• Huntcr and Bjoss, flth Dec. 1822, 

or Edi**'***'"'''' 



Edinburgh, 



&c. 



TiiU to Pmr^ 



Tis Oourt BViStB^ed tlie defences, and 
the action. 

Lord i?a^ay,*— This work was to be exi 
Farliamentaiy commissions^ ; but, if we we 
tain the present action, we would just be crcat 
set of persons to carry the act into execution. 
this action is competent at the instance of thes 
it might be competent for any one of them 
forward and pray you to take this superin 
over them. 

Lord Cra^ie. — ^As some of the pursuers 1 
recognised as corporations, probably they ] 
held to be «o in some cases ; but, in this case 
they have no right to interfere. 

Lord Gillies.-^ concur in the opinions c 
The question is not whether the pursuers hi 
to pursue an action, but whether they can pu 
action. I am clear they cannot 

Lord President concurred. This was 
attempt to control the commissioner's in the c 
of their duty. The mere meixtion of persor 
name of a corporation in an act of Parliam 
not make them a corporation. 

Xm-dCoreho^aer Ordlntay. For Pursuers, *^<#m^ 
W. Bell, W. S. Agent. For Commissionei 

MarshaU. John Phin^ Agent. For the M 
of Edinburgh, S6l.-G€ni (Hope) L\4my. M 
B^ifky^ 4r Henderion^ Agents, H. Clerk. 



» **f ^t] f-nTriVrrf 



C0UimOF»BBISIOOlll 



FIRST DIVISION. 



l : ' ' ci • M'- M ;\. Jl ^i.Mi. ^*^» ^'^^ 



10 Febrmry l%9li. 



/OHN JAMESON 

against 

ARCHIBALD WIGHT. 



r OF Sederunt 6th Feb- ISOe.-^Found 
inder this act of sederunt, Jbr an agent 
Ike Court of Session to have his aeeouni 
' of certain proceedings in an a^cfn 
before the Jury Court, r^^itted fo the 
he Court qf Session, to he taxed as be- 
and dient, although a temit had been 
Jury Court to the auditor to tax th£ ac» 
penses in that Court, as between party 
the petitioner not being agent for tkp 
8ueh remit was made^ 



t \' 



'.if: 



s employed by Wight as his agent 
him an action of damages in the Jury 
e that process was brought to a con- 
t changed his agent. Jameson gave in 
ie Court of Session, founded tipon tiie 
6th February 1806, to have his account 
^n client and agent, arid decree for the 
anced against Wight. 

)e^ed — ^That tbe aJ]ipli^at1ofi wi^t^com- 
whole account was incurred in a case 
^ends, and, during the whole agency, de-r 
the Jury Court ; and that the respoui 



■V:\^f 



4M 



imW^X^HQT THE 



io Peb.im j^jjt having obtained a verdict in his favour^ tl 
jamewmtk accouiit$i¥er8 npw before the auditor under 
Wight^ from the Jury Court. 

Froeeu. 

i^F$^m^ The Judges were unanimously of opinion 
appUcation was c(»npetent. The object of th 
sederunt 1806 was for the purpose of gettinj 
counts of business as between agent and c] 
juatedf without having recourse to a re^^lar act 
although, by the remit in this ease by the Jur 
the auditor might adjust the expenses as 
party and party^ this did not supersede, or rei 
<M>mpetc9it, the present application to get the j 
er*8 acoounts taxed as between agent and client 
accordingly, remitted the aocomitp to the ai 
Court. H. ^ 

Aet SoLGen. (Hope). Patty, Agent, Alt. 
hfm(. Adam Sf Brotvn^ W. S. Agenii. H, C 



FIRST DIVISION. 

7 

10 February 



No. LXVIII. 



MAGISTRATES op DINGWALL and Oi 
against 
. MesJIAY MCKENZIE AND HUGH MUN 

Expenses. — When the Court, upon a redaimi 

against an interlocutar of a ZfOrd Ordinary 

, ft ^silent, fu to expenses, jfinds expenses du 

a particular date, it excludes any clmm bej 

Ziord Ordinary for prior expenses. 



i 



(M^i^^bF '^f^^^iiaf. 



48* 



'' i, \- ;-M 



na* the instance of Mr^' Kay M^enzie^^^^^ 
kf unro v. Tke Magistrates of Dingtrall, re- Magi«tntes of 
-tain fishings, the Lord Ordinarjr pronoun- «. SK!!^ w«^ ^ 
nt on the merits, without saying any thing *^ ^^_^ 
ises. Both parties reclaimed. Upon the 
note for the jpinrsuers, the following inter<r 
i pronounced : * Refuse the desire of the 
adhere to the interlocutor of the Lord Or* 
mplained of ; also find the defenders enti- 
e expenses incurred by them since the date 
od Ordinary^ interlocutor/ The hote for 
irs was simply refused, 
^trates of D^gwall then enrolled the cause 
Lord Ordinary, and moved for expenses 
} date of his Lordship's interlocutor, wfaidi 
Hiered to in the InncFrhouse ; but the Lord 
id tiQt consider it omipetent for him, after 
d been disposed of by the Court, to enter- 
on for prior expenses^ and refused to write 
eutor ; Tqxm which the defenders ]nresedited 
he Inner-House, for a * remit to the liord 
to iiear parties procurators as to the ex- 
currad prior to his Lordship's interlocutor, 
> therein as to bis Lwdship may seem just ; 
trre the said question of ej^penses fbi^ the 
tiop iof the J^QtA Ordinaiyy until the fina} 
he cause/ 

fr/ refused the note as incompetent 
ges co|icurred in opinion, that, when the 
d ^xpenseQ due only from a certain period 
Eitfon, in a case where the interlocutiHr of 
Ordinary was silent as to expenses, it pre^ 
:laim fw prior expjenses. 





486 



IffiCiSIONS OP THE 



l/)rd CtrrefumaCy OriJimiry. For Magistrates of Dinj 
f^ertmm. Home <$- Bofc^ W. S. Agents. 
Pay M^Ketixie, Dean of Fac. (Mancreiff'^} 
M'Qt^en W. S. Agent, D. Clerk. 



FIRST DIVISION. 

No. LXIX, 11 February 

JOHN BELLENDEN KER and JOHP 
TEEIL, AND THEIR Commissioner 
against 
GEORGE NICOL, • 

Inhibition. — Circumstafiees in which a cred 
ingy without opposition^ obtained decree co{ 
causai, against the heir of his debtor, and m 
hition therein. Hie Court restricted the inhi 
certain portions of the lands affected by the d 
the remainder appearing to be sufficient Jb 
airityt of the creditor^ 

Lady Essex Ker granted a bond for LJS 
George Nicol. Previous to her death in 1819, 
ciited k trust-settlement, by which she conve; 
whble ^property,, heritaUe and mo\^aA>le, whej 
tuated, to certain trustees. Part of that prope 
Bisted of landed estates in Scotland. The peti 
Mr Bell^nden Ker and John BuHeel, were bf 
ticm^r^ bf Ladjr Essex. Mr Nicol at first claim 
Trierit df the bbnd from the trustefes who res 
Eri^latid, 'arid 9 litigation^nsued in thi Court o 

touring the det)endihicb'of to'M^tion, Mi 
nkdr certian other tre^itoirs,' Whose ftfeb t s were 



coitjBir 0^ j^jjsftippf. 



m> 



n ^eUon m theCourtofSessioii against t^^^- ^^^ 

, theheirsmMaw, wba at first lodgied de- Ker^^c v. 

imktely allowed them, withotrt opposU^^^ "^ . • 

?cree coffnitionis causa. 

ee inhibition wa^ us^ by the creditors, 

nissioner. 

:umstance^ the petitioners (in conjunct 

rustees of Lady Essex) sold a part of 

otland to the amount of L.18,700 ; and 

f obtaining payment of the price, and 

e debts which were undisputed, they: 

ischarge of the inhibition at NicoFs.in* 

ected the lands sold, and demanded that 

restricted to what remained, yielding 

i-year* 

?ing refused, the trustees presented a 

Court, stating that, while NicoFs claim 

t was unreasonable and oppressive that, 

restrict his inhibition, he should pre- 

3iiers from receiving the price of the 

old, and applying it in payment of the 

B not disputed ; and praying, therefore, 

tion might be restricted to the lands 

>ld. 



ered — Tliat the respondent was a crp* 
by the bond, but by the decree of cou- 
i had been pronounced, after appear- 
the defenders ; that he was, there- 
not merely to security, but to pay* 
id as good a tight as any other ere- , 
produce, of the sales, and was not 
lit to delay of payment, or to the ha-^ 
inary security, upon the allegation that 
.b^en.;rajs/9^ ia JSngl^nd as ,tq the vali^ 
:;unaex]^ upon, whiQb^ 4^cree, had poised. 



48« D9CJSIQNS OF THE Na. 

iii^jb^UfiK. hgpg^ ^^ jjj cinniiOTtanoes which enabled the part 
Ker, ec •. P^®*d **«re ever|r,<HiB(ipetent objection ; M*Allistei 
^'^t M^AUister^s Trustees, agtfa June 1827, S. ami 

A majority of the Court were of opinion that, 
the diligence of ndiibitian was one intended mei 
for security, it was noi cooipetent for a creditor^ 
the manner which was here attempted, indirectly 
Compel payment of his debt, by refusing to rest 
hi^ diligence to sntjects which appeared to be si 
cjent for his security^ Although the Court wo 
not, upon light grounds, interfere with the dilige 
i^orded by law, it was competent for their Lordsh 
\n a qu^tion of this nature, to look to the circi 
stances of the case ; and if it appeared that suffici 
security was offered by the debtor, which was all t 
the creditor was entitled to, it was in the discrel 
of the Court to restrict the diligence accordingly. 

On the other hand, Lord Crmgie observedp tl 
according to the proposed restriction of the diligei 
the respondent, though a just creditor to the i 
amount of his claim, miglit be disappointed, either 
Whole or in part, by the emergence of debts contrs 
ed prior to the inhibition, or by a fall in the rents 
the lands unsold, or by a defect in the right of i 
debtor. 

TTie Court ' restricted the inhibition, in terms 
/ the prayer of the petition ; and decerned/ 

For the Petitioner, Dean ofFac. (Mmcreiff) M. P. Broi 
^. GoWiV, W. S. Agent, Alu Ruiticrfonl J^ 

Dundas, W. S. Agent. jR Clerk. 

»mo^-yf »Ml tl Q^ 

- ' .i eir/r Ad dulrfw iroq0 ,W9i 

i ; " i'idw yd tfisliia ..... « ^^.« 



;ouRT dP Sfi^iON. 



4ftS» 



FIRST DiriSIOff. 

11 February ISM- 
ANDREW CATHCART, Bart. 

against 
JOHN CATHCART. 

ON, — A competition hamng arisen re-- 
succession to an entailed estate^ and 
? possession having been premonsity ob^ 
ither party, the Court, upon the cqypUr 
? of them, in the meantime, sequestrated 



Hugh Cathcart, in his son's marriage 
eyed the estate 6f Carlet<m^ utideir thi^ 
rict entail, fenced by irritant and resoliv 
t favour of bis son and the heirs-roa^ 
re» and a saries of substitutes. In 1784* 
lathcart succeeded as heir of entail to the 
possessed till his death in 1828. 
s before his death. Sir Andrew, suppc^ 
lI was not sufficiently secured against 

the heir in possession, and with the 
ing tire ordei of succession, granted a 
0,000 to a Mr Kennedy, (who grant-* 

bill to the same amount) upon whicti 
lication was led against the estate, an4 
was iiifeft upoft a charter of ad^dica- 
ben re-conveyed the estate to 8ir An- 
rhich he waa inMt, and obtained a cha]^• 
lation. Sir Ajidrew then (Jan. 1827) exe^ 
ntail, by which he cajlled the respondent, 
ibstitute, failing heirs of his own body. 






4gb 



liE&^id'ks OF "tttE 



iT.^ 



^J 




11 PeUisg^. JQ place of the pursuei^, who was his own iir 

Cathcartv. heir Under the Original entail. 

Cat hcart. fpj^g existence p?' tiiis new entail * was ont; 

Meguntration. tS tHe parties upon ftie death of SiV Andrew' C 

6nd, at a meeting at opening the reposilorie 

both' parties were present^ the' petitibnet'Si 

his intention of bringing a reduction of tliV 

tail; and it was agreed that all th6 papers N 

found in the repositories should be deposited i 

ftheriff-substitute of the couttty, and that the 

in the hands ot" the agents of Sir Andrews! 

fetaihed by them iii the ftieaiitime, they gitiifii 

to either partjr when refqiiired. Both parties' 

fied letters to Sir Andrew^s late factor; MV Jt 

authorising him to take charge of the est^fte,' t 

mansion-house, gardens, &c. for the mutual K^ 

Mr Cathcart having afterwards granti^ i' 

in -his own name to Mr Johnston^ and'tal:^: 

iteps indicating an intention of asSiimhig-'e: 

^osse'ssioh of the iestate under the new entail;- fi 

Andtew Cathcart, With coliseilt of his cwrih 

sented a ]>ethi6n to the Court of Session, lia 

the above ciitrumstances, and prayttig the C 

sequestrslte the estate, and to appoint ai ft* 

manage it during the diseussion of the figh4 

cimpetifig p*»ties^ . ^.' i 

In stipport of the application the petitioner 
ed—The whole proceedings res^rtied td %yi 
dt-*w Cathcart w^re d devitefofthe* Jiurp^ise 
ferlhg the order of fttLecCssion tttfitaiffed ^n^M 
f ailJ - ^\i^ bttl ^irhi^W lie gTaftted W Mr^KeliWeU 
tipbti \v^1ch hfljuditfatioh hafl ftJHdW€d,'^Wil8*ll» 
true ^e6t, as Mi^ Kfeh'ffWy fcadttn'4«ilW'^g» 
bilf^for precisely ^ ^^^ ^o"*^' ' a^ikfiffhttiwmw \t 
into the hands of et mutuaF friend. It was, the 



:OURT OF S^JSglpNf 



^l 



^, the sole object of which, was to,ob-**^^*» ^^ 
ion of the order of succession. Cathcart r. 

r on Sir Andrew Cathcart's. death, and^**^^*[^ 
deed of entail was discovered, the /p^ sequestraHoi^ 
tted his intention of challenging it, and 
right to the estate as heir un^er thiB 
Upon this both parties agreed to put 
er the maiiagenient of Mr Johnston f(^ 
af ; and a joint appointment to that e^ 
i to him. In this way neither of thje p^^ 
ill legal posses^pn of the .estate. lu 
has always beea the practice of thp 
ibtrate. Where a party ha§ be^n in thp 
session of a property, jBjuch pQSses^qSi 
;turbecl by an ein^gent challenge of hip 
lieii neither party has obtained; such \inr 
ession, and the controversy has beeipt iu- 
>mnienced from the naQna\^ut of jt^e de^^ 
4jr, whose succession both claim,. tli§ 
juestrate ; Ersk. B. ii. tit, 12, § 55, 
ueiitiori occurs as to. the right of success 
)pears to involve any serious douhtftjt^Q 
e the estate under its p^n charge, un,til 
led to whuiii the right tr^ly, bploflg§ ; 
■^ 15, § 15 ; Hume v. Hume, 24th J.irnp 
; M*Kay v. Heron, 19th Feb. J 74 J • 
i2390 .. 



>y Mr Cathcart— , : , 

ly having adjudgjwl the lands in |182?^ 
^ear obtained a charter ^f adjudicfttipp^ 
he was infef t, . and, thuei ; completed a, 
^ the property ; a»d,.ha. wm^diatp^y. af-^ 
[juveyed the pi^eperty.j tp ; Sjr Andrew^ 
completed hU titi^,^y,i^^ 



»w II b 



Kk 



• ) • . ^ r 



49S 



DECISIONS OF THE 



^ \^^ ^^ charier of con6rmatiofi>. ujpon w};kick ht* poi 
Cathcarttu estates to the day of his death, which bfi 
Cathouct^ April 1828. All these titles upoa 4hjB a^ 
ssquuinHM. were published by beiag entered upon the n 
Sir Andrew's possession must be held to 
upon these, and not upon the original entail 
the five or six years he did so possess, no 
taken by any of the heirs of entail to set i 
titles, or to challenge Sir Andrew's possesi 
theiln. 

Sir Andrew Cathcart having possess^ i 
titles before his death, the respondent is 
continue the same possession ; and, therefc 
not a -case where the Court is called upon « 
ed to take possession from the party bole 
the existing titles merely, because another 
brought a challenge of these titles. It is i 
there is either a competition for the characi 
under the subsisting titles, and no possessio 
case of a bankruptcy, where a variety of cr 
struggling to get possession, that sequesti 
ever been held competent ; li^rsk. B. ii. tit 
JBank. B. i. tit. 15, f 15, 16. 

Wherever a party has got into the lawl 
sion, he cannot be deprived of it by seq 
This rule is fixed in regard to .the competiti 
ditors ; Buchanans v. Gray and Hall, 3d A 
(Mor. 14,350.) 

It has also been decided that the successo 
ty who was allowed to obtain and hold pea< 
session on the disputed title, must be allows 
tinue that possession ; Duke of Hamilton ai 
Selkirk r. Douglas, 28th Nov. 1761 (Mc 
M'Kay «?. Dah-ymple, 26th Jan. 1797 (Mar 
And the flame principle was acknowledged ii 



>^ n 



COURT OF SfiSSlOl* 



m 



M Feb. 1829. 



the Roxbtirghe' e^at^ ; Itities r. Kerr, 

»7, Cathcart v. 

tdent then, being the heir under the title ^*^*|^ 
Ws predecesgor posftesscd the property a* 54>^a«/r«ii^ 
5 death, is entitled tocoHtinue thatposses^- 
1 the title has been brought undter chal- 
et! tioner. There is, therefore, no ground 
ing in the present case. 
. . I- . 

*s eoncun^ed in ojrinion, that there had 
usive and peaceable possession by the 
but, on the contrbry, A mutual agred- 
n entered into for the manc^ement of the 
rights of parties wew aficertiined ift tKi 
luction which had bfeen btmight. It tvu 
-ed, that the titie referred to by rtie rei^ 
not a riglit of property, but,' exfdch, 
m for debt, which did 6ot, per w, affoM 
1 usive poasessiOW, urilfess uuder petifllw 



, therefore, seqiiestrat«d. 

'ac. (Moncreijf) Jameson. Hunter j Camp>- 
:afkcat% W. S. Agents* Alt StjU^-Gen. 

kcnc. John Donaldson^ W. S. Agent. 



Kk2 






m 



DJ^QJ^I^^.QF^ T«E 



SECOND DIVISION. 

No. LXXL 11 Februm 

Mrs JOHNSTON SYME and Attoi 
against 
Pb CHARLES and Othkis. 

Phoci««l--Stat. 6 Geo. IV. c. 120. 

The Court held that they had no power* 
coasent of parties, to open up a record ' 
been dosed by a Lord Ordinary upon the 
mid defences* without a condescendence ani 
But, they recalled the interlocutor reclaitne^ 
und. remitted to his. Lordship to ordain ] 
and to grant a diligence for the recovery of 
and writings as appeared to benec^sary fc 
vestigation of the case. 

Act- Ja^ne. Alt Dean of Fac. (Moncrei^) 
Alii. John BeU, W. S. and HunUr, Ci 

Cathcarty ^c. Agents. R. Clerk. 



t..;r (. 



- f^.* . • 



•l;-., : 



COURT Of ISEISSION. 



m 



EcoND division: 



f . . 



11 February 1829. 



DALTON KENNEDY and his 

CUKAtOES 

against 
NDER AND JOHN KENNEDY. 

'AT. 16»5, c. 24. — An heir of tailzt^ 
he entailed estate in apparency Jbr more 
ears, and having hurdetied it with pro- 
linger children, in terms qfapermis^ve 
' eniail (executed on iheerronetms sitppo- 
is imestiture as heir of entail was taMd- 
fj^-found that the provisions so executed 
len upon the succeeding heir of taib^, 
ed his title by a service to their common 
passing over the grdnter of the jyrtivim 



id Kennedy, then of Craig, th6 great- 
- the pursuer, executed an entail of that 
rociiratory of resignation and precept of 
in favour of himself, the granter, whom 
kdd Kennedy, his only son then in life, 
to other substitutes. 

ledy, the entailer, died, leaving the pro- 
[krecept in the foresaid deed unexecuted* 
h^ his son, David Kennedy the second, 
irst substitute in the entail, did not con- 
vith his father by general service, so as 
establish any valid title in his own per- 
xecuted procuratory and precept; but 



496 



DBCI8IONS OF THE 



Kenned Vi 

SiaL IGSe, c 
14, 



U Feb. inaa j^^ made up his titles to part of the lands wi 
KeZ^[i^ the Prince and Steward of Scotland, 1^^ E 
ment of resignation, dated 6th August 1782 
to have proceeded dn the procuratory of resig 
the foresaid deed of entail ; 2^/, By charter o\ 
tion from his late Majesty as Prince and St 
Scotkind, dated and registered 6th and 26tl 
1783; and, 8rf, By instrument of sasine 
thereon, dated and recorded 25th and 31st C 
the same year. 

He made up his titles to the rest of the esta 
he^d of a subject superior, by instrument ( 
bearing to proceed upon the prece])t in the d( 
tail, dated and recorded 15th and Slat Octob 
David Kennedy the second, having tlrus 
what a{^)ear6d to him to be a valid title midi 
tail, possessed the lands upon these titles and 
from 1782 until his death, more than forty 
terwards. 

The deed of entldl contained a clause i 
powiers to the heirs and members of tailzie t 
the entailed estate with provisions to youi 
dren, not exceeding three years free rent. Da 
nedy the second exercised this power by 
various bonds of provision, followed by in 
and deeds of traniSference, dated 7th June 1 
March 1821, and 11th November 1824, in I 
tilt defcfitders, who were two of hie younger 
providing to them a sura of money, equal 
yeitrs;rent; out bf the estate, and secured ther 
iafeitmeBtj He also conveyed some uneutaii 
aid;- 'genettally, his whole proi>erty, heriti 
movcable^^ to the same persons, 

DavMrKennedy the f^ccond died in 1824 < 
Hiff eldest: son predeoeased him, having diec 
4th July 1819 ; but be was Biirvived by his g 



^^^L. 



mmnr of session: 



<97 



fcrho was bom in 1808, and was thus in ^^ ^^^^ i82f. 
16 time of iii« fatlier'i death, \rhen heKeime.h, &c. 
ct heir of eiitaiU and jremaincd so during '• *^^imcd>a. 
dug years of his ^atndfiaitlter^s posisefi- 7 /VrtV, 

% passing hy his grandfatl&er^ made up 
i25, by a general service aa heir of ea- 
ision to his great-grandfather, the en- 
i by infeftment and charters of confir- 
ich he com pk ted his rigbt to all the 
10 entaiL 

3 completed his own titles, the pur&ner 
Bs of reduction^ declarator, and reduc* 
on of the titles made up by his grand*- 
the bonds and infeftinenta grantedf by 
"enders. These actions were CQBgoined ; 



?r pleaded — L David Kennedy the ser 
substitute, and not institute ii» the $en- 
aving connected hiBnaelf with it by age- 
is heir of provision to his father^ could 
a title under the entail by resignatioti 
It; M^CuUoch t\ M^Leod, 10th Jiuly 
icL (Mot. 14,366); Hamilton v. Ha« 
June 1714, FoL Diet. (Mar. 14,«60) ; 
son, 12th Feb, 1708, Faunt and /V- 
4,357); M^Kenzie v. M'Kenaie, Mtb 
ErsL B. ill. tit, 8, § 84. The tittoa. 
which he endeavour^ to take »up the 
he entail, being incompetmit, hii owairito- 
inept » and he could not butden* the ^estMe 
1 bond of provision or infefkmeBtiift/fii^ 
i ; Peacock v. Glen, S2d June 1936. 
rsuer is not barred by preaeripticBai from 
bjection to his grand£ather-s iafeftment, 
[here wai no competing title on which 



406' 



DEKOTKaffi OP HJHB) 



IT reK ig; presciriptK* aoiddrriin-^amrt.^^^ ; Wf 

KcTinJi^Tc. viA\MHtrJnii»^MQBi (Miir^iAj^^ Pre. 

Tfiihi0, dca& tLlBOfihecauBt: prieseriptio&was intej^uptc 
Aiat 1095, c ^ years by ^he i purauer's miqcrity: hi 1819, 

biecameithe next beii: of . entail entitled to su 

graiuUbthdr. 

Hi J flUie pursuer does not represent his gn 

in any character whateveF ; and» therefore, is : 

under the:3tat. 1695, c. S4, for his debts or c 

The defenders amwered-^^l. The title < 
Kenmpdy to succeed was validly made upby i 
the preaepit of sasine, and taking up the pr< 
of resignation An the entail without a service, 
by the conception of the deed of entail, the \ 
estate was substantially conveyed to him; \ 
«. WellWood, 23d Feb. 1791, and 31st M 
(Mor. 1M68 and 15,466). 

IL: At all events, the infeftraent of David 
4iit 1780 waa fortified by possession of 40 yes 
his death; Miller, &c. v. Dicl(son, 7tli Ft 
4Mor^ 10,987 and 10,942). 

III. Holding the titles to haye heeii en 
completed) and, consequently, his i^feftnleDt 
iepi, thai: David Kennedy the second poss( 
;estate. merely upon his right of apimren cy i 
^taiU the bonds granted by him,' being in ec 
Wftth the poweifs r^erved in the entail, and 
tftoi^l an^} onions ^deeds in favour of youn 
)di»d,tjare> good iigiMtiist the pursuit who has 
Ittlrt'jtOitbei^estatehy p^WUg by his grandfi 
ihdjfriiippaireiit, under the Stat. l69o, e. 24; I 
: v.MxxiAefkik 17th Jai)» 1724, Kamett Epn. Dt 
mnWMr^k: B. iii..tiU8i.$,9i;.i/aM\ p.i 
^il08i , 



(amr'tiiFffiassit^ 



4m 



>M a«a'Wl»oie|)roce*, aBdOieardpMtied^- ^^^9^ 
ieiiebn; Pimds thnt^ by the^ teritis* of tftie r«t/jrw. 
^ 1T^7«^ the entailer himrtlf'^asiiifitd^^*^ 
^ B<m} David Kennedy; ^ (he |)ui»«Mr*s- 
first substitute : Finds, that«iilthmigl|' 
id not eomplete his title 'unddr th^' en- 
nent, the personal right ilnder the dis^ 
to the procuratoiy and precept thereia 
IS vested in hini» and could only be 
jeneral service : Finds, that the titles 
he said David Kennedy^ by using the 
md precept contained in the deed of en-^ 
taking up the same by a service, were 
that these titles, which were made up 
not se^refrora challenge by the opei^a*- 
*iptlon, the pursuer having, by the dtoth 
in I8I9> become the next substitute to 
Ker, the heir in possession before the 
ad run, and being then, and still eon- 
, in minority ; therefore, repeh the de- 
ar as they regard the said titles, and 
rtls, and declares in terms of ^th^ con< 
le action of reduction : Fi^dg, that the 
Kennedy is to be held to have ^osseissed 
estate as heir apparent of tailzie ;iind 
mer, by passing him by, and taking up 
service to the entailer, his great-grlind- 
itfd, by virtue of the act lfl96> l^all 
I deeds as his grandfMher would i ha Ve 
^ execute, had he been validly^ infeftitm- 
iH. Fihds,'tMt his obliga%id)»'i}tr regain 
of pi^Viiloti, which nrak6 the rtibj^ct- of 
"^uctldh^ntp^dbation, deyenfls K»i their . 
us deeds, and that their cn?rosity, in a 
h the pursuer as heir of entail, depends 





Wi 



DECmOHS OF THE 



No. 



ii<iNb.Mn 



Xflmiedj, Ac • 
V. K^anedyi. 

TaiUne. 
Si. 



eptbe; grantor hamng <»therwi»e no sufficient mi 
' to proyide re^aonabljr and suitably for his yout 
children : Fiaifl, that the statements coEitained 
lliereMrd aro not auflkieiitly explicit to enable 
JUvcdi Ordinary to judgio of this matter, and th 
foM af^ints the defenders to .state ia a coudes 
deaee that itmoiint of the heritable and move 
eatate settled on them by their father^ the said Oi 
Kennedy, together witk the burdens affecting 
gaid ^ceeasion/ 
Both j>artie9 having reclaimed 



The porsner pleaded^Tlmt the statute 169^ 
84, conld not apply to an heir making up his t 
wder aneiitail at all. 

The defenders did not seem to rely much on 
SOiuidness of their two first pleas, either as to the va 
ty of DftTid Kennedy's title, or the prescription wl 
had nw upon their infeftment, but rested their ded 
priiicipaUy on the statute 1695 ; and piemled — ^1 
the bonds being within the powers of an heir in ] 
session under the entail, and being rational provis 
19 favour of children, were binding upon the purs 
without reference to any other provision which I 
flight have derived from the granter ; Dalrympl 
9indnir, 33d June 1748, KM. (Mor. 13.035). 

This last view waft adopted by the Court, 
Lord Glenke^ — I presume there can be no d( 
of the former part of this interlocutor, that the ti 
made Up by David Kennedy were invalid ; and, \ 
sequently, that he falls to be considered just aj 
heiir of entail possessing on apparency. Now, I \\ 
alfways understood thai, since the discussion in 
case of Graham v. Graham, 13th May 1795 /^ J 



c&mr oFmmiom 



(m 



hm teen hdd *cf be settle* kitty t)»t Hie fir ^^J^«^»- 
fr statute* I69fiir iff sii(^ a 09i6e^ is to«iml)ject^^»ncHij,acc 
Mwiag b)? to siicb debts atal de^da rf tte*' *^^^*' 
kfiir w 1^ might har^e been made lif^Ie fto TaHzh-, 
trpoMA f&c^OBL had b^en entered and wfaftf^' ^"^^ 
estail. Tbe question wbetller the boiMbi of 
IB the present ease are oqerond, afld» eouMe^ 
B^hetiieF the heir pas^ng by can he made 
titam uBd^r the atalute, depends, I anspeet^ 
a the terms of the clause iu the entail per^ 
leh burdens to be in^posed^ than iipon the 
der the granter bad other property out of 
^mehie to provide forhisf younger diiildreii^ 
;ntai}a» this clause, which is a ciMnHHm we, 
Qg the heir in possession to burden the esh 
i extent of three years rent for the provisions 
r.rkildren, is restricted to the case ttot he 
no other property from whence he can pro- 
hem ; and, if thait were the case with tblp 
neiiidd b^ necessary to make the inquiry dir 
the Lord Ordinary for the purpose of se^^jjng 
h» boseks c^ be burdeiJks ^pon the entailed 
it» if these he no wch reatrictioiOk Ua^ this ei^ 
I power of the heiirs in possession to make 
ioHjt I cannot say that the deed^ cease tp be 
od consequei^ly onerous im the i^^K^e of ih^ 
95, merely because he may h^ye h^d ptlter 
of which he might have made a su^.c^# 
I, tl]»refore, thi^k that it wc^ldbaye been 
ji^ Lord Qrdiimry, instead of d^unecti^g'^a 
ion into, &e amount of the means whjchr^e 
r the bonds had to make provision i^i^ihis 
{hildren otherwise, had gone on, af tor; the 
i the formeir pact of his interloeuitmi to figid 
Ittestion whether the bonds are effi^^al 
le pursuer must, depend upon wJbetber they 



tm 



DECISIONS OF THE 



Nt 



&Va/. 1695, (^. 
24, 



^l*^**:i^^^' Would have *een effectual under the entail, ii 
Kennedy, ^ jit graritef had beftti entered and infeft. 



r- K ennedy s. IMtAUfMoy.'-^l recollect the case of Grabj 
Graham, to which Lord Glenlee has alluded, peri 
. well. That was an attempt to make an heir oft 
liable for the debts of an interposed person whi 
never been infeft, upon tbe ground that the i 
had not been recorded till a late period, durin| 
possession of the apparent heir, and after mo 
his debts had been contracted ; and the Court j 
held that he could not be liable for the debts ( 
ancestor who had possessed on apparency, in c 
quence of taking up an estate which he could not 
ject even to his own debts. But, here, the qiu 
is totally different — an express power is given to 
heir of entail in possession to burden this estate 
certain extent. To that extent, therefore, the c 
is unentailed, and every heir taking it must be 
for the onerous deeds of his ancestor who has p< 
sed on apparency more than three years. I i 
with Loi'd Glenlee, that the inquiry directed b 
Lord Ordinary is unnecessary ; for the entail a 
rizes the provision to be made whether the h 
possession have other funds or not. 

The Lords Justice-Clerk and PitmiUy concurr 
And the counsel for the pursuer having admitted 
the bonds of proviision were granted in confo] 
with the reserved powers in the entail, the folio 
Interlocutor was pronounced i — * The Lords, &c. 

* spcfet that it is now admitted by the pursuers, I 

* Daltori Kennedy, and his curators, that the bor 

* provisioti granted by his grandfather were grant 

* conformity to the powers given for that purpo 
"^'tte' entailer^ recall the two last findin^is of the i 

* locutor of the Lord Ordinary submitted to re 
^ rfelaitive to the inqiiiry respecting these bonds ; q 



:OURT OF SEsai^N. 



ms 



to that interlocutor, ,au[i<l\^i^^lsfie the*^ ^^^ ^^»' 
n the conclusions of .t^eiQfitjpn of i e- j^^,,^^^^ ^^^ 
jQfiprobation ; find th^yj^tlijA to ex-^ Kennedjs- 



^^ei£?fcn. Act. Skene, Ai U*NeiU. Alt 

J«, Dnnhp, W. S. and Jo. BeU, W. S. 
F. ClerL ' : ' 



Stat 1695, 0. 
24. 



FIRST BIFISZON. 






U, . 13 February 1829 



DUNCAN SINCLAIR 

against 
AND M'LELLAN, and OxHEB^t, 



11 % 



,, — An assignation of a dehi^ on which 

fgencc had followedy with warrandice 

nd deeds imports that the debt, is still 

diligence stfjficientiyjbrnud to warrant 

y-note, dated 25tli July 1820, Alex- 
promised, three months after ^te, to 
I Campbell, or order, the suni pf L.130. 
a the 28th of October; and, ^^ying been 
it was protested. But tj^e^upt^y, in 
! protest, instead of fiUjipg ^p ji^e pro- 
1 up ' the 28th day of J;uJ[y^' ^,t;^iat the 
, ex facie of the pffpt^st, ^ i^ye been 
' three days after it,wa8 dat^., ,^^f • 
ers, Wilson and ArLell^Xi,^^^ last ia- 



> ^ 



50* 



DECiS'lO?^^ OF THE 



i^F^b. is^^-dbi'sei'S, having t)aia the amoiiAt/'arfa' #avj 

Sinclair^ 'ed thd prbtesti and ottained the usual dec 

Wilson, &c. diligence according jr against a prior indi 

Warrandice. * Angus Sinclair, messenger^ was employed 1 

execute it ; an4, thereafter, upon the groi 

having failed to exercise proper diligence in 

caption into execution, they brought an aeti 

hini, and against the present jiursuer, Dunci 

(his cautioner) for payment of the debt, a 

mages. 

In this action, decree in absence was j 
against the pursuer, who ultimately paid t 
the defenders, and received from them an a 
containing warrandice, but only from fact a 
Having got this assignation » the pursuer, 
of ultimate diligence, recovered payment of t 
of the debt frorfi Campbell, the first indorser 
he granted an assignation. 

Thereafter, Campbell having discovered tl 
in extending the protest, and also that there w 
tion ih the date of tlie proniissory^note, b: 
action of repetition and damages against th 
6n account of the illegal use of diligence, in 
obtained decree ; and the pursuer, during t 
dence, brought the present action against 
ders, Wilson and M^Lellan, and against Mac* 
Macintosh, their agents, as responsible for t 
fettion 6f the diligence, concluding for redact 
<iecree ill absence which had been obtaine 
him, 'ivith the diligence which liad been raii 
brt, And for repetition of the sums he had p 
th^ diHgteikje, aild foi* relief of the action \\ 
berin rafsc!d against him at tlie instance of Ci 
111 ^^jpoit o^ the action, various pleas w 
by the pursuer; but the only one which il 
necessary to notice was — -I'fiat a party wh( 



COURT OF SESSION. 505 

th a protest thereon, recorded by the assignee, ^^ ^^^ I8t«, 
ts warrandice from fact and deed, is liable «'?' ^ 

oinciair v. 

isequences to the assignee, if the bill has been ^^'ii^on, Ac. 
irrecoverable, and the dilifrence raised on fVa^Zi^ke. 
?t illegal, in consequence of the nullity of th6 

iin plea in defence was, that the defenders, 

^ terms of the assignation, whereby they hand 
^yed the debt and diligence as it stood, with 
:e from fact and deed only, are not responsi- 
e legal validity of the various steps of the 
or for the consequence of any technical error 
racy therein ; and least of all for such as 
7e been observed on the face of the diligence 

>rd Ordinary * finds that whatever implied 
3n, in respect to warrandice, the defenders 
originally have incurred by taking decree 
the pursuer, and compelling him to pay the 
Jice of their debt, with the expense of dili^ 
nd process, the puisuer, by afterwards ac- 
from them an assignation to the debt and 
e, with warrandice from fact and deed only, 
ted his recourse to the extent of this species 
audice: Finds that, as the defects which 
m found to render the grounds of debt and 
fence invalid, have not arisen from the fact 
of the defenders, they are not liable in repe^ 
herefore sustains the defence founded on the 
uatiu-e of the warrandice accepted of, assoil- 
defenders, and decerns ; but finds no expen- 

^rdsiiip added the following note: ' The 

rdinary has found no expenses due, because 
cs the pursuer's a hard case. He conceives 



m 



|>^f3l6*Or^;Op.T 



l3Feb.< 



Sinclair v. . 



:t|3|at^^fa^;]()e|is^|)g^ could^ have b^oen j 

ment of debt was vitiated, or the dilig 
W^trrundU^. Vjl?P^.fl\J^,^^lV^pIl,tfe^ defend 1 

f a9;lii8 jptutiop^r^ *o P^y ^^ debt, with i 

* of the diligence^ they were bound to ass 
f.ithe, debt and di^genc^, with absolute ' 
^ Wli<t?a he incautiQusly, however, accepte 
*, agnation bearing the limited worrandki 
f . ^^d deefi, the I^ord Ordinary is of opitii 
t.t^r^nsi of the doctrine laid down by Mr J 

* ii. t|t. 8, f 27, the implied obligation mug 
' .s^ded \yy the ej^pressed one/ , ,,; 



, The Courts on a reclaiming note for tl 

* Before answer, recalled the interlocutor < 

* of, to the eflFect of allowing the pursuer 
V.his fifth plea in. law (the plea above nc 

* ,remitted to the Lord Qrdinaf y to hea^ pa 

The liord Ordinary ordered cases. .? .,^ 



The anaended plea was that^ if a bill hi 
j^roperjy protested, and the protest has bee 
by a jparty who raises diligence thereon, ai 
aigos the bill, with the protest^ with warm 
fa^vsmd deed, he is liable in restitution to 
nee, if the bill has been rende|?ed irreeove 
the diligence raised on the protest illegnl^ 
quence of the nullity of the protest ; more ] 
ly)is/tltp^osdent .liable injnepetilion, and £ 
cfMequfBces,. if the assignee^ has been coi 
pi^r ikbe debt assigned tc^ him by means of 
diligence lifitd vpin a dc£»e wj absence,, wl 
not)haire facmrobtained. if !th0i|true state of 
haii be^'lmown/rtositaM letifwliiiby, the ^ari 



COURT OF SESSION, 



m 



e decree was sought, and to whom the debt '^ ^^^* ^^^^ 
fence were afterwards assigned upon pay-sindlh^ 



Wils<m,'Ac 



igh, in the tase of an assignation to a debt, iVarTaHdk&* 
ce from fact and deed is not to be held as 
J an obligation to warrant the solvency of 
>r, it is a warrandice not merely that the 
has done nothing to injure the right, but 
iice tliat the claim of debt exists ; Riddell v, 
th Feb. 1706, Fount (Mar, 16,615). In this 
B was no express warrandice ; but, it being 
>f an assignation to a claim of debt, it was 
there was an implied warrandice from fact 
and that this warrandice imported dehiium 
Ferrier r. Grahame's Trustees, 16tli May 



amuered — That all recourse against thfe 
was barred by express stipulation ; war- 
om fact and deed not inferring responsibili- 
r defect in the right assigned, and burden- 
tlent merely witli the hazard of his own prob- 
and deeds ; and the loss which has occurred 
sent instance has not arisen from any fact 
f the defender ; Ersk. B. ii. tit. 3, ^ 27 ? 
cf. voL i. p, 195 ; Craig v, Hopkin, Jan, 17S2, 
. (Mor. 16,623) ; Dick v. Blair* 14th Dec. 
iV, (Mor, 16,603.) 

advising, the Court were unanimously of 
bat the defenders were liable to the pursuer 
on of the sums paid by him ; and, thei-e- 

respect of the vitiation of the biil» and of 
rality of the protest and diligence thereon» 
t*red the interlocutor of the Lord Ordinary, 
jrned,' &c. 

L 1 



BOS 



JXm^OmOF THE 



"sliw^ iofc? Bdlgray observed— That in a cas( 

S'nciiir V. tou«» although a warrandice from fact an 

\Xi hm, A c jjqI; import a warranty that the debtor \i 

jFarrfflrkfifff, it nccfessarily iiiiportcd that there was somei 

could be made the subject of an assignatio 

tbiog assigned existed in rerum natura; \ 

In the case of the assignation of a forgec 

warrandice from fact and deed only, th< 

such warrandice would be, that it was a 

ment of debt which had been assigned ; a 

therefore, amount to cm obligation on the 

- granter to indemnify the assignee. 

In this opinion the other Judges concur 
Lord Craigie further observed — That 
from fact and deed respected not merely 
the cedent posterior to the assignation, btj 
omission or commission on the part of the 
his agents, by which the assignation m\{ 
dered ineffectual ; Haliburton t?. Hunter, 
176», Gosford, Fd. Diet. (Mor. 16,591.; 



Lord Newkmj Ordinary. 
Clcufon^ W. S. Agent 
QM^m, W. 8. Agent. 



Act^Jamfson^ Kea 
Alt. Buchanan. 
J>. CI 









ECOAW DIVISION. 



*M\ 



lONERS FOi STOPfEHAVEN *^ 
HARBOUR 
against 
ALEXANDER KEITH. 



RESCEIPTION. SeEVITUDE- -L A 

by act of Parliament to conrmisMonerx 
trries,' and take away fnatetiah ifiere^ 
if making any eompeneathn, mil not 
o use a quarry already opened, 
n commonhj of pasturage^ tofeuars in 
irony ^ with an obligation to infeft them 
al tenements * and pertinents,* flowed 
//, and,Jbr some considerable time^ ex^ 
^'a quarry, sHu4tte in the subject of the 
lot to confer upon them any right of 
servitude in the quarry. * , 

in 1624, between William Earl Maris- 
\'oar8 of Stonehaven, which fopmed a 
te of the Maris^all fiunily, bis Lord- 
ratioo of certain feu-duties, binds him- 
sftments to the feuars * tabe holdeii feu 
d his foresaids, in all and haill those 
Stonehaven, honses, yard*, and pertl- 
tljr possessed by them,' kt. * Whilk 
inhabitantu that shall hajgpen to be 
said town, in all time hereafter, shall 
Ll« 



pio 



BEClSIONS OF THE 



N 



!2 Fcrb. 1829. 



CummissTdb- 
era for 8UiBe4 t 
haven HftT- . 
boiir V. Keith, < 

Statute. 

PretcripiUm. < 
S^vilndi. 



have property, belonging only to the said feuaf 
feuars thereof, the coniinonty and priviliges 
mentioned ; viz. in cominonty of pasturage of a] 
haiU the Braes of Stonehaven, as wind and w< 

* sheers, betwixt the common way that passes c 
/ west side thereof to Montrose, eastwith '4( 

* Bridge of Downie, with cojnmonty of castio| 

* feal, and divot, and pasturage of all and hail 

* muir, called the Siniddy Muir, as shall be ma 

* and meathed.' 

The * Braes of Stonehaven/ mentioned io this 
are a high, and generally precipitous bank or cli] 
tween which and the sea the town is built. In 
braes, where they approach the shore, and forr 
southern boundary of the old harbour of Stoneh 
is situate the Bedcraig Quarry, the subject of th 
tion, 

.. A predecessor of Sir Alexander Keith, in 1766 
chased the barony of Dunnottar, which was one ( 
estates of the Marischall family* That pait o 
Braes of Stonehaven, in which the RedcraigQuai 
situate, is immediately contiguous to thiy estat 
the sea. The late Lord KeJth, in 1797, bonglit 
judicial sale, from the York Buildings Compapy 
had acquired right to the whole of the ilarii 
estates, forfeited in 1715) the superiority of S 
haven, with all right which the Company ' ha 

* or over the braes above the town of Stontha 
Ihp decree of sale, however, declaring ' that the f* 
' right of property, cojnmonty, or pasturage, and * 

* 9ther privilege whatever competent to them, 

* be reserved to them/ The remaining propej 
-tl\e Marischall family, which was purchased J 
the same period by the late Mr Allardice of 
,notfar^ is partly bounded by the Pra^ of Stpneh 
but at some distance from the Uedcraig Quarry. 




COURT OF SESSIOl^. 



511 



Leith took possession of this quarry, on the'^^*-^^^^ 
m that it formed part of Iiis purchase. But (^^j^^^j^Jg^n. 
; disputed by Sir Alexander Keith's predeces-f^«^'^,^^'<**»«'' 
jordsnip * renounced and gave up all right bourt-, Ktith. 
session whatever of the said rocks and ^^^^^i*' siai^. 
favour of the former. It was, however, of- fy*crii>iion^ . 
be proved by the defenders, that long pre- 
his transaction, and until a late period, the 
Stonehaven, and tlie managers whom they 
le practice of chusiiig, constantly possessed 
this quarry, not by any tolerance, but as 

exclusive property, the stones having been 
he feuars individually, and by the managers 

works in the town, and occasionally for 
strangers, including even the tenants of Dun- 
ate, having been excluded from entering it. 
5, an act of Parliament was obtained for im- 
he harbour of Stonehaven, by building piers 
Works, The commissioners for carrying the 
tlie act into execution are thereby * empower- 
>en quarries in any waste or common In the 
nty of Kincardine (not being farther distant 
e mile from high water*niark) or within high 
lark on the shores of the said county, and to 
ber, and take away therefrom, stones, gravel, 
ay, furze, heath, rubbish, or other materiala 
y for const meting any of tlie works autlio^ 

this act, without making any compensation 
3ame ; and also to open quarries, and to dig, 
and take away therefrom, stones^ gravel, &c, 
excepted) in and out of any groimds, whether 

or not (not being the ground whereupon 
ise stands, nor a garden, orchard^ planted 
iwn, or avenue to any house) or any piece 
fi of ground set apart or used as a nursery 



19^«%. 



Coflimittion. 



Sftaiute. 

»« - •* ^» - 




Atf 



imcM^m^oPTWi 



M trees/ pi^iVicms to tUe p^^Ag bf^^ 
the nlatei4itl8 can motit easily be fbifiid 

er» fbr Stoiiew • ,^J1^^ ^ tj^^ g^jj ittbOHr, fOT lite ^OMtTtl 
DliveB Har- , , 

boujr «.» K€tth. « gaid works, makiiig recompen^ for ti 
' thereby" occasioned^ in manner herein-afti 

* ea; 

'T^he coRimissioners having intimated' t< 
alider Keith their intention^ in virtue df th«] 
powers^ of taking stones from the quarry < 
ttr l^e improvements of the harbour, Sil* 
brought a suspension, concluding that the i 
riK>uld be prohibited * from entering upon, 

* quarries on the siispender'tB said lands am 
' Bunnottar, or any part thereof, more e^ 
'quarry of Redcraig, and from quanyftig 
' ing away istones <»* other materiids tlierd 
'out making good to the said suspender i 
' ants in the said lands and quarry, all d 
' casioned by their proposed operationa, 
' lor stones or materials used or taken by 1 

• from.' 
The Lord Ordinary ordered cases^ tod 

Emitted the cause to the Jury CoUrt; 
tmnsmitted back, in respect of the si^pendli 
noting, that the servitude of pasturage e 
the feuars by the grant in 1624 extends o\ 
in which the quarry in question is altua* 
thai the feuars have been in the Ciistoin 
stones from the quai'ry for their own ptirp< 

Ttee sus;^nder pleaded — L The char^ 
cQht^^yance ftora the Feuars ofStoneh^ei 
dividually' or aa a body ; but, euppb^gf^s^ 
ancd/ the onVy tfight of the f«llfeirs^i^H[He tk^ 
bnveniby the grartt o^ ehe'^a^l MeI^«M 



COURT OF SESSION. 



SIS 



J their only written title) is a servitude of pas-^^ Feb. inn. 
For, as the grant does not itself limit the ab-^^^^^^^^^T^^ 
ht of property in the granter to the luineral.s^^* !br stons- 
so it js not a title in virtue of which thebouri^, Keith. 
uld acquire by prescrj])tion a right to use ' 

TT J T^ ., . . statute. 

ry in question ; I^r^L B. u. tit, 9, i) 4, 14, /^rri^Wprio* 
ie V. Cumming, 27th Nov, 1793. ritfor/"^"'"^' ""* 

The assumed powers by the managers of 
, in relation to the quarry, could not be the 
acquiring any right for the inhabitants, or 
*8, which the latter could not competently 
or themselves; the erection of a burgh of 
\t being a title upon which even a servitude 
age by prescription could be established; 

Bunse v. Hay, 22d Nov. 1732, liem. Dec. 
24.) Besides the use hitherto made of the 
' the feuars, or the town, never could autho- 
use of* it as is now attempted* 
is is, therefore, entirely a question as be- 
i chargers in their character of commission- 
the statute, and the suspender as sole pro- 
the quarry. For the supposed claim of the 
ing out of the question, as well as tiiat of 
ord Kejth> and the conveyance to Mr Allar* • 
ling no pretence of a right to the subject in , 
t follows that the portion of the braes in 
quarry is situate, with the quarry itself, is 
ive property of the suspender, subject only 
ars' servitude of pastui^age. 
the act merely gives the commissioners 
ithout making compensation, to * open 

in any waste or common,' in the county 
■dine, not being farther distant than one 
i high water-mark, or within high water- 
the shores of the said county. But, fu*st, a 



U4 



DEOISIONS OF Tett^ 



Siahite. ,, . 



^**^'^^^^^p05*eritofifli^lft quarries never can entitle 

cumK^MmrjS^^^^^^^^^^^^^^^ f^Q"^ ^ quarry alread 
^*^^^^ AMi2a4conitty^,Bfeither this quarry, nor the 
iM«P^^.£^^39thkbvi^ eaa be denominated 

*"" ^(^r^irCimimooik' Mlt were absurd to call a 
^TOStj^ !>i«%i(^ ^Ms constant profits by 
^nd^twilh ra9 little propriety can the brae 
avound Ibis I quarry be called a common,] 
oawBQ a^ jQUfDber of individuals have a 8e 
pasturage in common ujKjn it. The princi] 
ftriKettoQ api^itcable to a clause of this des 
tb^<Vipry refveise of that to which the ch 
olAigeid tahate recourse. Nothing is mo 
cfintvatf to the spirit of British legislation 
tJ^ie p;ofi^iy of any private person should 
for public purposes, without affording hin 
^oti^oa that account ; and, thei^fore, wl 
in a statute are founded on to this effect, th 
i^ter|>Tetati<^n muet be applied. In the eirc 
C^fJxis (^S6j indeed, the suspender isentitlec 
tbiit, had it been intended that the new fa 
^oqeharV^n was to be constructed out of the 
Quftr^, that fact would not have been left 
pf infcfreii<?e^ but must have been specially i 
ill the act,/ 

. Th^ cbargers jwfiY/fZprf— L Under the expi 
£){ ibe act of Parliament, they are entitle 
^(<p^^ £f^pm the quarry in question i^ithou 
f^ly, ^omp^fiatjon^ both because it is sit 
\^%$ffi gpj^pfmnont not farther distant than 
^pfQIp,-^^ fF^t^j^imark, and because part of 
^Jjiftlly Withni lligli water-marlc on the shor 
pQfj^pfY i(flj^iiuiturdme. The Hraes of Stonel 
\i|^l(Kd9^.1and|iaiid incapable of cultivatli 



OURT OF sEsensiD V 



iU 



erdure scattered ov^ thteldlffidre^dft^^^^J^^ 
for the use of the>ftalarsj>'^ho1bav«otfhti*fl«iWtt*. 
he immemorial prm^te iX mvag'iii^^^^ 
inon. If this be Xi^ >gtouiid-^<^(3<^ifl^^<^>^' g^^- 
tatute as * waste or iommotij* thefe^i^^^^^, v. v 
the county of Kiricardinfl ^Mch^OT^^j;^^^^^ 
riptiOTK The cin^um^dliee thuC uf latfb 
•nder has obtained rent for the ij^OBJtnf 
ipecially wheo its use by the burgh ooft*- 
erly. - " S 

it the chargers are not entitled to niaifte 
Larry already opened. But the poweir 
n to open quarries is plainly intendM 
but to extend aa much as possible the 
naterials necessary for the proposed tea- 

josing the quarry falls under the second 
elause of the statute (which the suspeti- 
eein to deny) he has not shewn that, as 
suhjeot^ compensation for the uSe of it 
rs would he due to him ; on the com 
averments, with respect to the mode 'M 
rry was poesessed and used by the Wkl 
unity of Stoneliaven, be correct, the lat-. 
egarded as the true proprietors. The 
i24 is not a mere conveyance of a right 

and any difficulty that could hiave been 
he import of its terms, is completely ek* 
memorial, uninterrupted, and; tmtiflrti^ 
possession of the braes iti every K^ay 1h 
^ere capable of being beneficially tistetf. 
s grant obliging hhki to iirfeft ft^ feiikihi 
al tenements? of lands 'and bimsfeg^'iatttf 
followed by such possession, Js 'at l^Sfta 

to {Jreveut the sUspenders^ or&my tifher 



010 



DETClSlOJre OF ITHE 



No 



19 Feb. 1829. 



Statute. 

Pre9vriptio7t, 

MervUudg, 



party, frotir maintaining an exclusive right of pr€ 
CommUioii. ty in the rocks In question, t^^^ ^f^inaoii&^ofn: 

en for ^toae* . : 

haven Har- 

iHm r,a K eith. The Lovd Ordinary * suspended the letters, aui 

/ cerned ;* and found the chargers liable in expei 

His Lordsh'p issued the following note : * Tlie fe 

* of Stoneiiav'en appear to have no title to any tl 
' but the pastiu^e of the braes. This is plain f 
' the words of their contract of feu, when stated j 

* accuracy (which has been too much neglected) ; 

* there seems to be no doubt that the suspender 

* title and possession sufficient to exclude sti'ang< 

* and the chargers seem to be strangers ; for the 
' of Parliament appears not applicable to quarries 

* isting as open quarries previous to its date** .^h 



The chargers having reclaimed, the Lord Jasi 
CferA said-»— The only question is, whether the e( 
ntissioners are entitled to take stones from the B 
craig quarry without making compensation, 1 th 
the interlocutor right, I hare not the slighl 
doubt that the feuars have no right of property 
the solum of the braes, though the grant in 1624 
not very clearly expressed. 7'hat |p-ant only con f 
a right of common pasturage. Lord Keith, it appef 
came to be satisfied that the property of the quai 
was not in faim, Init in the suspender ; and his Lo 
ship having abandoned his claims to it, there can 
noilonbt that Sir Alexander Keith must be held to 
the sole proprietor. But whatever supposed right 
vested in the feuars, there is no evidence that it I 
been acquired by the conimissjoners, i^ui. v 

Thie titiestion, therefore, comes to be one of ec 
sthtctioitt of the act of Parliament, Where powers a 
privileges are conferred on trustees by statute, whii 



/n 



cov9!iF-w^m^m^ 



sp 



ate pj?operJy, I..tbwk^^^l^.t;^ie?:«, 1^ stact '''1^^^::, 
must be appli^, Wlj^v^ jii^^i^mscom 
imon' import, I can find no words in^;;|];rj|^^^^^ 
entitle tti^^mniifiaionie^rp 4:9 :en|;er .ppieii ^"^^^h p- K^uh. 
8 I and such is the subject In t^nesiipn. suitntg, 
?ay,— I am also clear that the power ^,7^!;^^^^^ 
crnnmipBidners to open quarries tteiser ^' 

Lein to ent^r the sujBpender's open quar* 
tr, however^ that the interdict canpot 
emns of the prayer of the hill of su^- 
1 is against entering the barony of 
til, for the purpose of taking materials 
jg compensation. Under the words 
immon/ they may have right to open 
^ Braes of Stonehaven, supposing theso 
lonty belonging to the feuars. This 
pt open, as well as th^r right ta take 
^11 quarries, within high water-^mark. 
/^,_TJie right of the Earls Marischall 
in winch this quarry is situate appeared 
to the suspender* As to the right of 
t h entirely dependent on the contract 
:hink it ia impossible to put any other 
ion it than that which has been adopt- 
l Ordinary. It. confers merely a servi- 
ige; and the fetiars could not acquire a 
right The conunissioners, therefore, 
ibe right which is coafierred upon theu 
; and that does not entitle them to go 
hat have been dpened, but only to, open 
his \iew^ there is no need, to considor 
leaning of ^ common or w^ste,' as used 
gree witb the Lord Justice-Clerk as ^ 
tstntctioa\^pijcable to an act of P41W 
infringtt-private property, . ^ ^ r; ,.. 



statute. 
Pretoripfion. 




sii 



tteCi^GNS^ b^ 



M< ? Ml 



CommG^.; ThS Cduk, * in rtspefdt of it beiri^ admit 
h"^lto.^ ^sttspehiei^/ind understood ttat th^ inter] 
bour't.K^!u<''fcli|imed a^m^ only to tfce 

• ^^liarryi Wheiffed to the interlocutor.' 



kmi Ordio vy, if'iKenzie. For tbe Suspoo 

. , . For^t^, J. G. Davidson, W. S. Agent. 
(Chargers, Skene, H. J. Bobertson. tl, Fla 
Agent. T. Clerk. 



FinST DIVISION. 
No. LXXV. 18 Februm 

ROBERT BURNS 



WILLIAM BOGLE, 

Stat. 1695, c. 28.— Run-eidge* 

In a process of dividing lands as lying runri] 
of 0](e> statute I69$i c« 23, it appea^ £rqii» i 
report) thfit one of the fields belonging J;ov 
consisted of between six and seven acres, tl 
part of which ^Wias l>oiuided by the jriy^ C 
which, although interjected with portions o 
8ue;r^ l?^^s> M^f^s ;iQt strictly r9nrig; yi^^^po 
riff^^reciteda^d^ 




17th JmM^^,(Uor. 14,151)* recalled thein 



^<[^ifi^,(^.8i;^^ 



m 



Ordinary, and|foijp4.,^l?i?t, ?f^.^ **^^* *^^^ 

lie ^^ l^i^e^t}p^9^l^t'^^^ 

thprcspf take^ from. Mr.^^^ ig^s, . 

B s^riff to proceed 01^ ^9 ^%^jMpg^l^.n^ ,, 



Prendent observed thiEifv «a '- tt^cdmA 
ituation of the field m '^(t^stion^^und* 
ver Clyde, and in a spot welj aij^pted 
lie extension of the act to such a case 
urious to the rights of the owner, and 
ig beyond its spirit^ as well as the words 






, Ordinaiy. For th® Advocator, J. A. Mur* 
fa. Wemyss^ W. S. Agent. For the Re- 

Sol.-Gen. (Hope) R. Thomson. W. A. G. 
^ Agenta. U. Clerk. 

c. 



SECOND DIVISION. 



:, 13 Fehruary 1829. 

INOR AND COMPANY of the BANK 
TLAND, AND JOHN HAMILTON, 

against 
OGILVIE^ TRUSTEES. V ' 



rn SALE.-^EaX7ESTRATIdK.i--JK^a?^f^^^ 
\ng €lecreeif qfinaitts and duHeSy and^kabi 
t a process ofraniiiig and stih\:aj^t€^\ 
depefidence of the actim, j^;^eqfi€strar 
estate f arid the apminiiil^ent qf: ajtifticml 



££0 



BBClBIBNa OF THE 



IS Fell. 1»20- 

EM)k of SeoU 
latid. kc tt» 

Trust? e«. 

Htmklng and 
Jitfe, 



/actor, aftdAe^ Court j^ranted it^ nuhm 
tJie opposition lofteitttwefdart/ trustee.^ in 
of t/ie e^tate^ v^ko alkged that if teas noi 
arid that tbiy had hegnn to ifike mea^i 
part of itJbrpaymetU oftJie d<sbts. i^ * 



Mr Ogiltie of Gairdoch conveyed his estj 
tees, with power to sell for the payment of 
and to execute an entail of the reversion* 
1818, when three of bis trustees, vi^. the Ei 
more, Mr Crawford Tait, and Mr Walker, \ 
the trust, and entered into possession of 
By the directions of Mr Ogilvie*s will, Mr V 
appointed factor for the other trustees, ^ 
to receive the rents, which he was instruct 
over to Mr Tait, who was directed to app 
payment of the interest of debts, &c. and wl 
trusted by the testator with full powers o 
raent over the other affairs of the ti-ust, Thi 
interest in the reversion of tlie estate was ii 
Iter and Mr Tait, the former being the ins! 
the latter the first substitute, in whose favo 
tail was directed to be made. 

The interest of the debts for which Mr O 
liable, either as cautioner ur otherwise, ex 
free rental of his estate ; and It appeared 
doubtful whethar there would be any reve] 
paying his debts. 

The Bank of Scotland, ii'ho were real credit 
estate of Gairdoch, obtained decrees of mail 
lies, and afterwards 'ixrought a process of rai 
aale, in which Mx Hamilton was appointed 
agent. 

In this proc^ several interests were prodi 
at a meeting on the 13tb Beceuiber, during i 



COUKT OF SE8SKMI. 



sn 



tion of ranking arid sate, . Ae creditora *\^*''' '"*■ 
mmon agent to applj^ t > the Court for Bank of s^ou 
►f the rents, and ajipointraent of a judf-J^^?!^^^^^^^^^^ 
[1 unanimously coiicurred in suggesting Trustees, 
le of the trustees) as a fit person for that ^^^i,,^ ^tid 

Sale. 

ition was opposed by the other trustees 
unmore and Mr Tait) who alleged that 
w taking measures to sellpart of the 
[r Ogilvie had appointed to be first sold, 
e more than sufficient to pay the whole 
li the estate was liable: That the esttat^, 
nariiy liable for Mr Ogilvie!8 eautiooarjr 
as now advertised for juxMcial sale^ and 
)sed of in a few weeks, by which nieand 
debts would be still further reduced : 
eutly, there was no insolvency of bis 
he sequestration, even if granted, would 
nd the process of ranking and sale disw 
ort time ; and that it was, therefore, in- 
ike the affairs out of the nianagement of 
ry trustees ; That they held it for the 
concerned : That it was now under the 
re of the same person whom the credi- 
[ to be appointed judicial factor ; and 
dence of the process of ranking and salcr 
eting diligences, and pcevent^ the acquis* 
rences, or voluntary alieQationa, aa effec-i 
[uestration could do.: 



rs answered — There is jEitwia ,/!m^ w- 
le proceedings which liave already^^al^Mr 
inking, that the amount of the debtti far< 
lue of the estate. The only waj in ll^bk-h 
r insolvency can be regii}arly9Sicettaint4> 
irt of the judicial factor, for which puxr 






DEqiSIONS OF THE 



^ w!^^^^ pose it is necessary that the rents should 
Bank ofScoj- ti^^^^d, to enable him to prepare his reporl 
o^lvut*' **^^ creditors wish Mr Walker to be appo 
^_. . .. oil the estate, they are entitled to take 1 
ment of the estate out of the hands of the 



Ranking wid 



^7%^ Coi^ri unanimously held that th€ 
ground for the opposition to the application 
ed the petition. 

Lord Glenlee refeired to the case of ] 
Anderson, l6th Nov. 1764 (Mor. 14,346.) 

Act. Sol,Men, (Hope) Marshall '^^ *'* 'Alt JD 
«it (Monereiff) Geo. Jos. BeU, J, TalL » 

^rl^ ^^> ^Y' ^" ***^ Talis and VQunff, Agents, 

t.. fiMit.^ SECOND BiriSlON. 



No. LXXVII. 



14 Februaf 



y The MARQUIS of QUEENSBER 
• 1^.. ,^b.\ ^{^ ' against 

f The Rev. THOMAS GIBSON. 

JifRisDiCTioN. — Glebe. — It u ineampeti 
presbytery^ under pretence of designing a 
declare that a eertaik jwrtimi qflandf m 

' poBsession ofotie of the heritm's^ wasjhnn 
oftlw glebe, and belongs, as suck^ to the n 

The charger, who was mini*?ter of the parish 
maben, presented a petition to that presbyterj 



mn^wmmk^ 



Vss 



at above two acres of land, which were siir^'^ ^'^^ *''-*'*• 
by, atitl included in, the farm of Rockhall-^igp j^^^^ 
onghig to the suspender, formed part of the^'^JjY"*'^*"9f' 



iis parish ; that this land, previous to 1776, * 

JufUd 



held in lease by the predecessors of the Mar- f'*^'^*^*^'^ 



iueensberry from the incumbents of the pa- 
I that, since that period, it had been prxs- 
' the late Duke of Queensberry and by the 
\ without any title, as a part of the farm by 
was surrounded; that, in consequence of 
rived of these two acres, he had not a suffi- 
ntity of land to make a legal glebe. He> 
prayed the presbytery to take the premises 
deration, and to proceed thereon tocx>mplete 
of Locfamaben, either by designating to the 
the two acres or thereby of land at Rock- 
before mentioned, or by such other proceed- 
dl seem meet. 

Bsbytery entertained tliis petition ; and pro- 
institute an investigation Into the circum- 
: forth in it, with regard to the possession of 
3 acres at Rockhallliead, notvvithstanding 
and a protest by the suspender's agent 
le competency of their doing so ; and ulti- 
^r considering the documents produced by 
er, and examining witnesses, they declared 
s satisfied with the proof of the claim brought 
md gave sentence accordingly, sustaining the 
I finding that the iniTjister had established 
o recover possession of the portion of glf be 
libed in his petition, which they (the pr;*»- 
iiew, designated and set apart for him ac- 



lifter liaviniTj cliarged upon this decree, the 
f Qaeeiisljenv »nR|ieiided, and pleaded — ^ 
M ni 



«M 



tifet:iSK5N^ OF THE 



l7Fcb.ia29. j^lj^qrj^t}^ no jurisdietii 

M^mqi^^ t^rtfeJft a qWstioh of this kind, wliith could 
Queensberty petekitiy t^iiA oiilv by a declarator of propert 
That* the irifeftments^ of the suspender and ] 
^esd6r8 in the l^arony of Torthorwald and 
RockhalHieadi subsequent to 1776, gave hii 
scriptive title ifrhich exdudcd all iuqviiry 
possession of the land previous to that i>erioc 



Jurisdiction.' 
Glebe. 



The Lord Ordinary took the cause to 
c^ses^y in which the question on the prescrij 
was fully argued. But t'te Court was vmi 
of opinion that the proceedings of the p 
were altogether incompetent, and tliat it \i 
ces^ltry, in the present action, to enter into < 
tion of th6 question of right between the pa 

The charger pleaded — That, by statute 
48, which followed out and extended the ] 
of stat. 1563, c. 72, the bishoj> or ordinary, 
place the presbytery now comes, was bound 
against any alienation of the glebe or ben 
was entitled to designate and mark out the 
tJi^ glebe of new on the entry of every ii 
er at any other time when it might be ne 
do so. 

He also offered to cure any supposed defe 
petency, by repeating a summons of deelarat 
might be conjoined with the suspension. 

The suspender did not object to this last 
ing ; but the Court thought tliat this deci 
jirebbyt^ry must, at ajl events, be suspended 
to th^ charger to institute a proper action i 
the question of right, if he should be so advi 

Lord Glenlee.—! am averse to give the k 



QOfmrommmm^ 



mn 



lis proceeding on the piart of the pres-*^**®^^^ 
not know what bishops may have been eik-MMqvisof 
but it is clear that, if the presbytciry intend-^^^^^^^^^r 

ife a new glebe, they bave not obeyed the 

the statute which authorizes them to do^X^^*^ 
m incumbent applies for a n^w glebe, on 
hat he has not got any, or that the pre- 
lot of tbe proper extent, the presbytery 
te a proper quantity of land to him ac- 
le rules laid down in the iKrts Qf Pariifi* 
he heritor whose. land is taken has, in 
ief from the other heritors of the parish ; 
^ application for a new designaticm pro* 
illegation that a certain portion of land 
part of the glebe, and that it must there- 
at from the present possessor, aqd 4e- 
3ng to the benefice, this evidently raises 
hich can only be tried in a a;mrt of law» 
lich the presbytery can have no jurisdic* 



■; A- 



nill^M — I agree entirely in this opiulpn, 
course for us will be to suspend the let* 
er; ri^serving, if that shall be thought 
the charger to bring a competent actira« 
Uke-Clerk.^^I entirely eowur. I 9m 
lat this suspension cannot be suffered to 
)u;ri to be c(Ajoiiied with any ot^T action. 
}way concurred. 

f, therefore, suspended th0 letters nmf^ 
uid the suapepder eqtjitled t<> e^p^nsf^ 



y JUadce^pc^ AaU Deq^ of Fop. fJ^on^ 

md/brd. Alt. «/. A. Murray^ Henderson, 

tkkard^rty b Metville^ and i^. Cpi^par, Agent*. 



tn' 



U- 



Mmt 



I;. ■» 







DECISIONS OP THE- 



. SECOND DIFISION. 

NoLXXVni; 17 Febrmary 

GLAS8F0RD 
. against . 
The Honourable Mns SAY MACKEIQ 
r > Cromarty; 

Prescription.— FofeF*EiTUitE.— I. A'Cr6w 
tef, restoring: <m estate] wkich had faUen 

' Crown by fovfefture^ to the heirs of Ike tr 
Jee-simple, is a valid title, on which prei 

• may run against the right of the ' suhstitm 
prior entail, who were not affected by this a 
of thejieir in possession,' \ 

IL When an estate has been forfeited by 
Gee. II. cap. 41, the Hghts competent to 
' stitfites of an entail existing at the time of 
^ feiture, wJio nrt called to the successibn on thi 
' of the traitor and the substitution under u 

* held the estate, are cuthff, unless a claim hi 
entered in their name within six months, ii 

. mity with the Zid section of the statute. 

George, first Earl of Cromarty, executed a s 
tall of his estate in 1714, by which be caller 
succession, first, his grandson, George Master 
leod^ and the heirs-male of, his body, whom 
his other grandsons and younger sons in su< 
and the heuis-male of their bodies ; whom a}] 
the- Eldest daughter or heir- female of the said 



COUKT OF SESSION. 



'S«7 



tfadeod, and the heird-male of their bodies ; ^'^ ^^^* ^^'^' 
ag, to a long lipe of other substitutes. GUwsford n. 
Master of Macleod, the institute of this^^^^^®"*^ 
me third Earl of Cromarty ; and, having preseripnon. 
treason, was attainted, and his estate was ^<^/'*'*»^ 
le Crown by statute 20 Gfeo. II. c. 41. 

statute it was provided, that all lands, 
Sec. belonging to the persons attainted, or 
ted, of high treason, as mentioned in the 
be vested in the Crown^ * according to 
il and respective estates and interests which 
]>erson or persons attainted, &c. had, or 
3 had therein ;' and, by the 2d section, it 
, in order to secure the rights of third par- 
11 persons * having any estate, right, title, 
reversion,' &c. out of the estates thereby 
^is Majesty, by or under any settlement, 
, &c. which affected^ or was. binding on 
\g person, should make such ^laim in the 
8si<ai9 within six months of the entry of the 

particular register appointed by the sta^ 
5ept within the county or stewartry where 
ies; and,, failing such claim being made^, 
ire declared to be null and void, and the 
tes are freed an4 diacfaarged from the 



5th Septi^mbeir 1749> within the six months 
in the statute,; a claim was given in on be- 
rge l^ackfixkiifd; an infant, second son of 
5 Bari of Cromarty (the forfeiting person) 
it it should be found that his father had 
an irritancy under, the entail, and eonse^ 
B divested of his estate previous to the for- 
, at all evenfs, that it'diould be found that 
being held by the late Earl under a strict 



hEGHBRXUS OP TfC^ 



PrmeripihfL 



j tidied ^ h!g h^irs of entail. 

fi^fore the Couh of Session adtised this 
jud^ent badb^n pronounced by the House < 
in rti<e case of Gordon of Park, 21st Ma 
{Kame^ Eheid. att 48), by which it seen 
established that an heir in possession of an 
estate^ being attainted, forfeits the estate, not 
himself, but for all the heirs of his body wl 
though him in the same substitution. Tli 
aCCortfingly, on the 17th December 1751, pro 
A dditerance On the claim of George Mackeuj 
fug • That the lands and estate claimed were 
^ by the treason, conviction, and attainder of 
^ late Earl of Cromarty, not only for his own 
^ during the existence pf heirs^-male of his be 

♦ might have succeeded to these Ipnds and 

• Cromarty, in ctoe the said late Earl had 
^attainted ; and, therefore, they dismiss the 
^ the said George Mackenzie, the claima 
^ find that they have no powers, in hoc siatt 
^ termine whether the estate will remain for 
f prejudice of the collateral substitutes of tl 
f th^e being no claim entered by^ any of tl 
f stitutes ; and decern,' A reclaiming petil 
^ven in against this judgment by George M 
find Roderick Mackenzie, the brother of tlie i 
Eaii, who now concurred with the original e 
Imt ihe Court appear to have adhered to th 
|B6nt witfa6ut any mateirial tdtei^atlou.* 



Woodhall has written upon his copy of the petition, ^ Adhere 
f to the dther subktlttit^s t6 &pe as iceorcis ^hen their thim* a 







oCTFirr '^'«88«05r< 



^Psfc 



0. III. c. 27, td John Lwd MoClw^, t^Gia^d^ 
of the fttkainted' Edri, whc^ Ofbteiaed [ a ^Ja cienzie . 

ter, in 1785, of the lands ai)4 ^efifaiU? wlycfe Pn^*yi4w. 
ted by th^ attakKkr of Gdorge EarJ ofCrp^^^'^'^^^-^ 
aanedted to the crown by i;be^t»t^t<^>;9ij5 
fpon this charter Lord Maeleod W9S,inf^ft 
March 1786 ; and^ on the Sd-of May in tha^ 
he executed a new entail upon a differ^^t;! 
eirs^ eaUJng to the sucoessiony in the-i^th 

1, Lady Isabella M^ickensie, hi& sister^.r^ 
rg6 Lord EUbank» aiid the heirs^pmaleiof 
whom failing, the heirs-female of the body 
Lady Isabella Mackeo^ie; whoiu failing, ta 
)r substitutes. 

lil was completed by procuratoiy of wsig* 
>wadby crown charter and infeftiBent; and 
descended under this investituro, first, to 
lacfcensie, the Ranter's cousin^who w;ai 
r entitted to succeed to him mnder the len** 
• ; secondly, to Lady Etibank } and finaHyi 
y£lhip*s death without male issuei to the 
ho was her eldest daughter. r - 

mer was the son of a daughtei; of George 
-oinarty, the forfeited pm-son, and con^ 
» called, by the entail in 1714, to the m^ 
the estate, hi preference to the defbid^r^ 
ftly heir*female of the eldest ddiBghte],*0f 
arsooi He a(!|eoi^iDgly expede a seryjce 
as nearest lawful heir of tailzie ap4 pfAvi- 
deceased George Earl of Cromarty, con- 
di^>08itioiL of .tailzie in I714l; andjraised 
of reduction of the existing investitture, 
executed 0n the a^th- April l«afl.^ ^ 



lili 






^nder, amongst other pleas, which it is un^ 
to mention, produced a title to elKdude 




tfS8& 



QBfflBHBVSlOFiailiD 



17 Feb. iw.- fam()ed^>(|ii(Ae<poeassi^Teft^ 

JoKwed^^iii HUi flisrter ^iid sasine^ ill fft^oBrr 

pleaded,^ that A&jr dfUiti >R}»Qh nBghMVerth 
competeiit toitbte pursuer oi: hia pmleoeflBMB. 
twr^y (mt:0ff bgr the sftatute 30 Geow Hw c*t 4eW 
haviog-been made witbbi «i^ mwth^ w t$n 
provisioiia of th^t glatute^ 



Olassford u^ 

PrfscripHon^ 
ForfgUura. 




The pursuer pleaded^-^Tbsit the title to 
xn^iAtaiaed by the ctefender, was incoii;»i$tent 
t^ime construction of the charter 1781^ ^nd Is 
1 7ft6, on which it was founded. Th^ the d 
^Ted to the previous forfeiture of Ae estato 
the vesting act; and that, consequently, it t 
and could convey, nothing more than the sa 
and interest in the estate which had been ^ 
tfee Cro^^n by the forfeiture of George Ead 
m^rty-r-^that i$» the estate subject tQ the daii 
m^bstitutes in the entail 1?14, who were not p 
by tl^. forfeiture ; and that, consequcaitly, no 
tien could be founded upoti this chgrtjsr agai 
rights. 

On the question as to the interpretation pi 
iute 30 Geo, 11^ the pursuer maintained that 
znede by George Mackenzie was sufficient to 
r^hts of all the substitutes ; and that the sa 
nullity in the 33d section of the act did not 
f^am^ o| this kind emerging after the forfeit 

.The Lord Ordin»y prononnoed the folk 
torlti^wlW ftud note : ^ The Loi^d Ordinar; 
.'.Ofiwidered ihe xevised cases, finds that, as^ 
^ in terms of .the 4^ Geo. II. cap. 41, *wb6 ei 
• any of those substitutes under the entail V 
< t are called to the succession, fnilifng J ihjb 
f JJrtI, and the heirs-male of his body— 



osxTRTi^v^wBsmma 



sn^ 



iifca^fa«»^otJieHrtpeaMiiipetki«J>tb^ 

4h^ftBsent process. of re*Acti(^':7F4iid«/'*''^*^ 
i septU-otel/, that the clraitet <17S&4<^>^ 
toiiv^ ^ to J^ard Hacteody and •big:^,hei«di 
Qees, an absolute tf^ u^limittd >#igiiftr 
]d9 disponed ; and that this deed, and 
following upon it, constitute n vailidt)i^e' 
ith": Fiqds, that die estate bud -b^fl^ 
a viltueof this charter and itifeftmMt^' 
bsequent titles founded on them, for abd^e 
I before tiie present aetion, which a^ears^ 
list dialladjge made hy the heirs of tall ;^€^, 
lied ; and that the ddfenders iiave ;ther^ 
eed a title sufficient to delude any rights 
pursuer can found on the entail : There^ 
bis the second and fqurth preliminary de^ 
oilzies the defenders ; and decerns : I>^!id^ 
r liable in expenses; allows an acedtiflt 
be giFen in ; and remits to the auditor^ t6 
ne, and to report.* Note, — r* The L^Kd 
being satisfied that two of the defences 
unded, thinks it unnecessary to give atiy 
Ihe other objections stated to the p«ii^^ 
f some of which ai*e attended with gnegitr 
as dep^ding on the application tif thd^ 
w of forfeiture to« the rights arifidng'fiiom^ 
1. In regard to the defences he has sus* 
fMaks h «lear that the 29ki section ^ the 
i€t <t90 Geo. IL chap«!41) Was toCetitd^^ 
;ei«il kfeiterms qmite sufficient to vrotup^ 
agbts; of ivfaatevsr > ^ftture^ affieetiog^ the 
icfa . iwose) bj0 1 tdse aot 1 vetted in iAte CroWfir ; 
Btkefpitticete weFe:ien|afiledi dtwas refid^lMl 



1 



'it 



i i 



m 



DECISIONS OF THE 



17 Veb. 1M^ 



Gladsfotd V. 
Mackenjde. 

Prd^eript'ion. 



^^^eillial to the preservation of the rights 01 
stittrt^^ that a claim should be entered 
in the Cottrt of Session, within the six mc 
eeribed by the act. It is true, a claim \ 
forCreot'ge Mackenzie^ the second son of tli 
irtg person ; but this was dismissed by tl' 
who were satiefied, in consequence of the 
judgment of the House of Lords in the cas< 
that Qe&rge Mackenzie could have no rig;l 
tain Mackenssie, a collateral substitute, to 
Mine objection did not apply^ did, no don 
appearance in tlie proceedings which folio 
this ckim ; but it appears, from the accoi 
Lord Elchies gives of the decision, that 
held it incoiUpetent to enter into his ease, 
that the claim was for George Mackenzie i 
that none had been entered for the collatei 
tutee. It seems probable that the six m^ 
' been allowed to elapse, and that Captain M 
finding it too late to enter a claim for hii 
tempted, as the only thing possible, to con 
self witii fliat which had been made for Gee 
ioenzie* That the right of the substitutes, 
was extfaiguished by their failure to claim 
have been understood on all hands, in all i 
quent proceedings on the claims of the 
who were found entitled to payment, notw 
ing of the entail, which would, if subsist! 
precluded their claims, on the ground th£ 
>^lit of the whole substitutes was cut off, t] 
took the estate as if it had been held in fee t 
the forfeiting person. It does not appea 
>Lord Ordinary that any inference can 1 
drawn firotn the terms of the judgment in 
«f JPark» in support of the right of the si 
Guilder tl^BentaiJMn question,', tw^^ ^ 



tSXffKP <0]p AEaSIC^; 



(e eiitet<0f fthediarter 178^,^ by Q^nmingGkssfDrd « 
tioC o6iiv^ tlie absolute propef fty of the -^^^^^"^^^- 
sieiielyrfiuciat right to them as the; Ctfowii Prescriptim. 
fteu tofhEFew But there s^»etn8 to he no 
'ouud £>r such as8umptioiii The charter 
titiejr guch right ds the Crown may have. 
th^ lands and baronies^ both property 
latf, in the most unlimited tepms^ to the 
bcina and assignees. It is no doubt toid, ns 
scfiptian of the lands, that tb^ had been 
the attainder of the Eiarl of Cromarty ; 
m not necessarily prove that the Crown's 
tot iteolnte; and such words, of course, 
Ne he)d to qiudify and limit the ab^lute 
the grttnt. Neither can the reference 
ade to the act of the Mth of Geo. III. 
^e such an effect. For the charter assumes, 
t does give power to make tbe g^rant in 
^bicfa are used ; and although this should 
rtualiy been the case, it is not competent, 
ng* pi^escription has run, to question the 
life granter, where tiie defect does not 
mtlie deed itself. The late derision of 
n the case of the Duke of Buccleuch ik 
3 Gunninghame, SOth Nov. 1826, seems 
I point, as the objection to the prescrip- 
insmcoessfally made there was, that the 
fevred to a statute as constituting the 
^ granter ; while it is clear, fhim tke &ta4 
that it tcoold confer ho such right •! » 
intainad, farther, by the pursuer, that, as 
was icxtinguished fay the forfeiture^ so 
(rer«xisied beirs^male of Ae body>ef the 
Blarl^ and only revised iqpon their :fi(ihire, 
utes were not oatlrol^ og^re titt the death 



mi 



.'MKISIONS OF THE 



19 Feb. 1829; 

Gkssfvrdih 
^lackeDzie. 

PmteripUon, 
for/rikiret 



*' of Lotd Macteod in 1789, since wbicli timt 

* tiye prescription has not been completed. 

* {^QSing the right of the substitutes to be &t 
^ teoce, the Lord Ordinary does not see hoi 

* held to have been extingiiiahed for any pe 
•* saving cldusp ill the Vesting Act plajiilj 
^ that it is to remain imaHected by the forft 
^ is by th? subsJ9tenoe of suth a right aloni 
♦* of tlj^ Crown could be limited ; and, if 

- was incompetent to grant the lands to J 
f leod in fee^implef in prejudice of the rij 

* heirs of tailzie. The substitutes must, 
^ have been, from the first, in iiiulo to chall 
.* a conveyance; and the negative prescript 

* equally with the positive, have run fron 

* of March 1786, the date of recording the i 
.♦ talj^en on the charter/ 



r The pursuer reclaimed; — but the Court v 
note, being unanimously of opinion that tl 
of prescription was well founded; and (with i 
tipn of Lord Glenlee) their Lordships held 
the claim of the pursuer was cut off by the 
the substitutes to make tlieir claim in due ti 
the 22d section of the statute 20 Geo, IL c. 



. TJie Lord Justice'Cierk, — I think the in 
well foujnj^ on both points. As to the forn 
pfit, viz. whether the claims of the substit 
cut; off by the failuref to enter them in ten 
statute ^0 Geo. IL it is necessary to consider 
of ^hat act very minute! y» together with tt 
proyiaions and special directions which it g 
as^to the time and manner in which all ck 
jthe forfeited estates shall be entered > and 
P^te nullity ^whld^ it departs ngaiu^it all clai 



COlfRt OK SBSSlOrf, 



'^ 



in confomiity to these- provfsions. No- "'^^^^^^^ 
e Legislature could give my r^e^y Gini^rd «. ^ 
% declaration* In the present case, pp; Ma ckenzie , 
de:by the substitutes in obedience to the ptutfnpiwm 
t for Oeorge Mackenzie, which is found- ^*^-^*'^*' ' 
5 piursuer, will not do. We have the 
Lord Elcfaies Yt^^ T^ikde, No/ 44) for 
b w£is dismissed, and that for Roderick^ 
not reserved^ Not only, therefore,' was 
dned by the Court in 1751) but we have 
ecision dismissing the only one which; 



econd branch of the interlocutor, Tt^hethef: 
has produced a sufficient title to ex*^ 
IT also entirely with the Lord Ofdinai^y-- 
y a charter of the lands flowing from the" 
I-catmot see how the reference to the 
dture can affect, a grant which^ ex Jade' 
', is unqualified. On this point we have 
(pbMed ca3e of Marchmont; and ftlso thaC 
I!alleuder t?. Livingstone (2dth Nov. 1827) 
much less favourable case for the d^fen-> 
present ; yet, at the decision of that case, 
it, all the Judges of this Division, and 
•ity of the whole Court, were decidedly 
lat, had the possession been sufficiently 
was a valid title on which prescription 
een foimded. 

nlee. — I. am perfectly satisfied on the 
that the defender has produced a suffi- 
exclude ; and, therefor^^ I have not per- 
1 so much to the question on the statute 
3 1 otherwise should have found it neces- 
As to it I think there is a good deal iu 
t plea; and it wotiM reqtth*e much con-'! 
fgre I could hold that hit claim was ex* 



ipM 



mmBimin^ow^im 



It Feb. lan. tlu^ ]M)[^y % 

oiMsfbith* forfeiture before any claim was entered fo 
Ma ckearie * stiti^tes. But I am quitjB ccmvinced tliat al 
t'wtripihH. Hra enetoded hf the presaFiptive titie produ 
F«r/iteM ^ftn^i*; atid, tlH^refor^ it is iiiotnecesfiaj 
into any other question, 
• JjOfd PitmiUi/^—l concur entirely on h 
with tba Xi6rd Qrdinaiy's inteiiocutor ; j 
iatisfied with the reaMBS that he has a$8J{ 
in his note^ I do not think it nec^sary to 
ftny moire detailed opinion. The case of 
Livingstone is a direct authority against 
weld's ^gmttent* I concurred iirthat judgn 
itiU think that it would be a mortal blow i 
tute 1617 to allow any reference, after the fc 
lo any thing beyond the charter and saline. 
Z'^wiii'^i^fetray concurred entirely on be 
with the Lord Ordinary. 

tiOrd Ordinary, NewUui. Act. JC>^« <^Fac. ( 
FvUerCon, Fcr^ytkj Skene. Alt ^<#;^ • 
raj/, Walker. J. G. Hopkirk^^AuaWcUkei 
eon, & MelviUCf Agents. F. Clerk. 



PIRST DiriSIOM. 
Ko. XXXIX; l9F4bruari 

JOHNBEIWRAM 

againtt 
ISOBEL STEELE. 



UT^T.^^^Cireutu^aMtes entitling the pun 



(sav^%or'S^SmtiQi^ 



HI 



r aliment qfatmlin^atchiUiQhfirwikiH »« t>i^* >wa 



/. 



Steele. 



E1.E raised an aetioB before tfa^ sheriff of Proq/: 
B against James Bertraoi* fojr inlying cb^r- ^^^^^ 
lent of twinS) alleging Bertram to be the ^«'^ *^ ^''p^ 
tram gare in defences ; and afterwards^ 
lly examined, declared, * That the petition* 
unt to the declarant's father. Declare* 
rer took any liberties with the petitiOiier ? 
ieclarant slept in the same bed with H^ 
I the petitioner in another bed in ^& 
ment. Declares, that his father bas be^n 
froan home during the night, upon whic^i 
:he declarant sjept in bis father's 1)ed 9s 

the petitioner in her own bed ; and he 
i any of these occasions went intQ the 

bed.' 

ff allowed a proof. Two witnesses were 
rhe first witness, James Wait, dep^neid' 
[ within a quarter of a mile of the re- 
1 that he was well acquainted with him : • 
ions to Martinmas I8SI6, but he canupt' 

upon the particular month, he saw the 

and the petltioneTy along with Isol)el 
the respondent's cousin, going towards 
de sufiiddy, whert Isqbel Bertram resided ; 
lappened between 9 and 10 o'clock in the - 
rhat, a short time previous tq Martinmas • 
atid after the. Dunse biring market for - 
rants, the deponent, understanding the 
was with ehilds asked the respondent 
• not he. would take the child when born, 
the respondent answered that, if he, the 
, thought tlie child w^i his^ , Uiat then he , 



V 



538 



P^J^JK>N3^ OF THE 



IIJ Feb. l»2*). 



Bfftr«m 

Steele. 



Oath in Sxtp^ 



* would take it : 'V^^i he put the questi 
' resjiondeDt from curiosity/ Aim Fakj 
poned, * That she recollects upon one 

Prr^. * alongst with the petitioner into John 

f^^p^^^p^-' work-shop, which is close to his dwelli 

* That the defender was in the shop before 

* ent and pursiler entered : That, after tbe^ 
' the deponent and petitioner and the defer 
' to speak some nonsense/ when the defends 
' the petitioner above her coats on the frc 
' body in a very uncivil manner: That 
' the deponent left the shop^ and went to 

upon a turnip field in the neighbourhood 

not see the pursuer aftem^ards. Depoi 

before she ftft the shop, the defender qi 

hold of the pursuer, he having only laid h 

in a slight manner/ • i-.^i^^nui 

The sheriff found * that the circiimstan 

pursuer and defender sleeping together o€< 

in the same apartment, when no other pe 

in th0 house, is not sufficient jyer se to e: 

pursuer to her oath in suppk^nent ; but 

with the facts which appear in the evi 

Jaines Wait and Ann Fairgrieve, his wj 

particularly of the latter, where even the 

of a third party did not prevent an indelicj 

bition on the part of the defender, finds i 

aiier entitled to her oath in supplement 

defender is the father of the childi-en in c 

and appoints her to appear and depone/ 



The defender advocated, and plemled — T 
lish a semiplena probation the proof must b€ 
to induce a reasonable belief of the party's av 
wiiich the proof in que$tip|i fails to do. 



t$i^it^>(^^y^it^ 



£3» 



jtjpftiger^ Mind, and' of more suspicious cir- ^ft^*- ^^^ ' 
"Barfi 111 several cases, teen cpus^dered by^^^^^^ 
4 Insufficient to entitle the piirsueip to aji Steele, 
^meht; (Craig v. Crichton, 14th June Pro^^ 
n^hrey r. Aiken, 4th July 1816, affirmed ^^'^'^ 
«th Feh. 1822 ; Shaw's Appeal Cases, vol.Oaihin sup. 
5athie v. Smith, 29th May 1821 ; Robb t?,^****^ 
9th Nor. 1824 ; Paul v. Gilmour, 4th Dec. 
dam t;. Guthrie, 19th May 1827. 

d Ordinary repelled the reasons of advo- 
the Court (Lard Craigk dissenting) adr- 




ise^ Ordinary. Act. MaidmenL 
V. S. Agent. Alt Marshall. 

Agent. S. Clerk. 



James 
Soberi 

T. 



SECOND DIVISION. 



ex. 



19 February 1829. 



MURRAY 

against 
M'NAIR. 

-Stat. 6 Geo. IV. c. 120, { 40 ; Acts op 

RT, 12TH Nov. 1825, SECT. 73 ; AND 

tY 1828, SECTS. 7 AND 16. — Findings on 
^fauet in an interlocutor of the Lord Ordi^ 
miig a till ^ suspension qf a judgment 

Nn 




«4a 



DECI&IQNS OF THE 



i»^i«>.it|»i 



Mutvay i 



^ OM dfferioK eewrU proceeding im a j 
recalled hy an interlxutor pcmdng a teco 



PriMMM. Mu&BAY brou^t an action agaiogt M'Ni 

r^^ito^tmu.^^ slueriff of Lianarkshire^ on the allegi 

40> ^ ^ ^ he had advanced to the defender the Buni 

ru»t\2thNov,vpon hin promise, either to fumish the 

l^nS^'jIai coals, or repay the money ; and, therefore, c 

onrf^ia*^' ^ ^^^^ *^® defender should be ordained to i 

either obligation. A proof having been led, 

g^Ye judgment against the defender, who, I 

^esentied a bill of auspensiau, which Lord 

posed of by this interlocutor, (14th April 18S 

* it proved by evidence in process, that tl 
^ h.^1 was paid by the respondent to John 

* acting for the complainer, under the conditi 
^ that the respondent should receive coals tl 

* that the money should be returned, neithe] 

* alternatives was implemented ; therefore, i 

* bill ; finds the complainer liable in the rei 

* expenses,* &c. 

A second bill, presented to the next s 
Ordinary, was passed by his Lordship. 

When the cause came to be discussed on 1 
letters, ihe charger pleaded the incompeteii 
judgment being pronounced affecting the fi 
Lord Eldin*s interlocutor, which were allej 
final, in terms of the 40th section of the 6 G 
120, and the 73d section of the act of seder 
Nov. 1825. But the Lord Ordinary pronoi 
following interloeutw: — ' Finds that the 
'* duced does not estaUish the respondent's 1 

* the suspender requested the respondent ^ t 
••* him with the use of the money, and he wo 
^ give the pursuer coals to the same amount^ 



OOUaT OF SESB16K. 



HI 



and 16. 



nitt of L.81 ;• thcrfefwe, taspends the let- *» i^^ »«•• 
Udter, aad decerns/ mZ^T 

M*Naiiv 

rger reclaimed to the Court ; and, on the Proce^ 
form, pleaded— By the 40th section of the jy^'^\^,^ 
ict, it is enacted, that when, in causes comt> 4o. 
my of the inferior courts, a proof shall be runt \mN<nh 
J Court of Session shall, in reviewing thel^^\i^^^j^ 
proceeding on such proof, distinctly specify ^^{^^ ^ 
IterlOcutor the several facts, material to the 
ich they can find to be established by the 
, ; an^d the judgment on the cause thus pro-i 
^all be subject to appeal to the House of 
so far only as the same depends on, or is 
y^ matter of law ; but shall, in so far as re» 
16 facts, be held to have the force and effect 
ad verdict of a jury, finally and conclusively 
several facts specified in the interlocutor.* 
I 73d section of the act of sederunt, 12th 
1835, it is enaicted, that the above provi^ 
apply to the Lord Ordinary on the bills, 
advises or refuses a bill of suspension of a 
of an inferior court, proceeding on a proof 




ds, * Court of Sessioin," in this provision of 
are not used as contrapdistinguished from 
lamber. On the contrary, an interlocwtoif 
I Ordinary on the bills, or of the Court r^f 
at interlocutor, is just a judgment of the 
Session sitting in the Bill-Chamber. As* 
the Bill-Chamber waa not meant to be ex^ 
thepre can be no doubt that the Judges of 
Ntt« 

on IB r«-enacted in the existing act of federuilti llth Jolj 




543 



DECISIONS OF THE 



l9i%b,iM9. 



Murray v. 
M<Nidr. 

Proeest. 
Stat. 6 Geo, 
I r.ci20y sect. 

40. 

Act9 of Sede- 
runt 12/A Nov. 
1826, «<?c^ 73, 
and Wtk Jttly 
1828, jrec/^. 7 
«iw^i8. 



the Court of Session had power, if they saw 
tend the operation of the enactment, or t 
that it did extend to judgments pronounce 
Bill-Chamber; and, if sucli power was con 
seems equally clear, that it has, in fact, been 
in the clause quoted from the act of sederunt 
If the Court, reviewing an interlocutor of 
Ordinary in the Bill-Chamber, find certain 
tablished by the proof adduced in the infer! 
it cannot be doubted that the provision in 
would apply. Now, suppose that a Bill 
interlocutor, with special findings in point < 
not brought under review, it certainly must 
effect of a judgment of the Court, It was q 
petent for the suspender in this case to havi 
ed to the Court against Lord Eldin's intc 
and, not having done so, its findings must I 
be final. 



Answered by the suspender — ^1, The pre 
the statute does not at all apply to the Bill- 
The object pf its institution was not to decii 
but to determine whether tliey should be s 
enter the Court of Session for decision. It 
accordingly, a special statute to authorise 
to decide, in the Bill-Chamber, admiralty 
bills of suspension. But it is plain, from a c 
tion of the whole of this section of the J 
Act, that the Legislature here only contei 
decision of the ca«^^ which has commenced 
ferior court, and of course pre-supi>oses its 
moval into the Court of Session. The proce 
the Bill-Chamber are regulated by subsequei 
of the statute. 

2. Bu^ it is still clearer, that the clause is 



£> 



COURT OF SESglON. 



543 



e to interlocutors of the Lord Ordinary on*^7^^- *"^ 
According to the practice previous to theivn,rray ^ 
dicature Act, the passing of a second bill^^*'^'*^^'^' 
e interlocutor refusing a first bill, except m Proce^M. 
g of expenses. It is confessedly no objectf^'^^^^^**'^^ 
ute to take away the rifi:ht of presenting: a-***- 
; and if it had been meant to affect ihe'tmit vith N<iv, 
aterially as the charger assumes, renderiiig.^JJj'n^^fj^^^* 
md in many other cases, entirely nugatory, ^J^^^^j^^*^^^*- ^ 
aid have so declared in express terms, which 
; does not. 

v^ision in the act of sederunt, l2th Nov, 
ided on by the charger, while it contains 
extending the operation of the statute 
rd to the effect of findings in fact, to 
damber, proves the opinion of the Court, 
atutory regulation does not apply to the 
)er, or, at all events, to interlocutors of the 
nary on the bills. For it merely recites 
f the regulation which requires the Court 
on reviewing the judgment of an inferior 
eding on a proof, to specify in their inter- 
! material facts which they find to be es- 
>y the evidence, omitting entirely the de- 
iat such findings shall have the effect of a 
lict of a jury ; and enacts, * that tki^ shall 
> to the Lord Ordinary on the bills.* 1 he 
e special findings which his Lordship is 
•ed to 'introduce into his interlocutor is, 
eft to be ascertained according to the for- 

e. . 

ion of the Court is further proved by the 
1 of the existing act of sederunt (11th July 
:h provides, * That when a bill shall be 
md expeiises found due, and a second bill 




UA 



BBdflSSiNS OF THB 



M¥A>.^d^ 



Muitay •. 
M<Naif. 

Process. 
Stat^ 6 (7^0. 

40. 

Aoi$6fSed. 
\2th Nov, 
lti2o, sect, 73, 
a'ndUih July 
\^SySecL7 
andie. 



* ftlmtl lafterWaMs be passed by aaothor Lord C 

^ on the Bills, the interlocutor pronounced on 

' bill shiall be held as recalled in toto ; but d 

* that all claims of expenses, hinc inde, arlsin] 
the presenting of the first bill, shall be reserve 
and may be disposed of in the process of suspe 

* advocation.' If the statutory provisioh was 
stood by the framers of this act of sederunt t 
to the Loird Ordinary on the bills, how coc 
have enacted that, by the passing of a second 
interlocutor pronounced by the Lord Ordinar 
first bill shall be held as recalled in toto ? 

According to the charger's doctrine, that 
findings in matter of fact by the Lord Ord 
the Bill-Chamber are reviewable only by tin 
it Would be necessary for the party, whose h 
fused during vacation, both to present a m 
hote to the Court against the findings of fac 
interlocutor, and also a second bill to prevent 
gence proceeding, if a sist were revised — 
plainly contrary to the intendmtot both df thi 
and act of sederunt. 




Lord Gierke said — ^That the question 
trhether the act of Parliament, ])er se^ won 
6perated the alleged change in the practice of 1 
Chamber — ^for clearly it would not ; nor ^he 
Court had powers to extend its operation 
priactice ; for there could be no doubt that i 
gulation Would have been within the powers c 
upon them. But the true question was as 
the Court had actually done. NW, the term 
78d section of the act of sederunt, 19th Noi 
do riot jlistify the idea that it was meant to 
tbe whdte ][)h)vii3ion8 contaiueid in thd 40ih sc 



OOCIliT OWinUBMXL 



«M 



i to cases, hk Ae B«W3liMlihek' ^labrifoHjr «•*««>- W^ 
lie rq^niatkm y^n, that^ in tlie er^etitaf tiiej^j^^l^j^i^ 
r being brougbt imder teidew, the Coitrt^' ^"* 
s the benefit of the Lord OidiDarjr's idetrs proow. 
Icnce. I have no idea that the act of sede- f ^ ^'Sfl*. 
t to 4337 that the ^[idiiigB in p^int of fact, ^o. 
in Bin-Chamber iisteriocntors, were tabavei^thMim. 
f a«pedal verdict of a jnry- The new act of ^S*52' 
mtains the same clause^ though, by a aubse- ^^^J^ ^ 
ision, the iiiterlocutor passing a second/hill 
interlocntor on the first m iolo. There is no 
or the separate process whidi snch t^baoga 
wonid occasion^ and which, in itself would 
malde. For, if a party has no r^XLedjr 
lings in fact in the Lord Ordinary's intc^* 
Bsing a bill, except by redaimiiig to the 
[ if he does not obtain a siat in the miAQ- 
ust, whik he brings the interlocutor unckr 
he Court, ofier a second bill to prevent ^ 
oing out. 

rd JusticB^CSeri. — ^I am of opinion that the 
3 not good ; but I arrive at this eonclusj^opi 
t grounds from those which have been stat- 
Glenlee. I think we had imdoubted power 
g^ilations for the BilUChamber ; and« with 
Lhe regulation in question, I am clearly of 
it, when an interlocutor, specifying the facta 
established by the prdof led in an inferior 
)ronounced by the Lord Ordinary in the 
>er, in such a way aA to oraie trithin th<) 
le act of Parliament apd act of sederunt^ 
(re the effect of a special Verdict, epnda- 
ig the facts found to be prov^. We are, 
\ deal with such findings of the Xiord Ordi- 
\ Bill-Chamber in the same manner as with 
he Lord Ordiniai*y in the Outer House. 



54« 



DECISIONS OF THE 



i©Feb^^ia» ^ the latter, it is not said esp 

Murray v. ttestatutB, tftat they shall have the efiect of 
M^Nair^ vei€idtrj;^.lbut^ if brought under review of tl 
Procest. they haire'thiB effect. UMbai/ ««*;# ji d'utiost 
/rfk^i^iwiL '^^ qiiCTtion here is, whether the findings 
A^ofSede. *i^* "^^^fe '*>^^"^ pionounced in such away; 
runt i2th iVToe. tbebiuudcar the operation of the act of Par 

1826, sect 73, , T ..a.- 1 Ai. i . i 

€md nth jti/yanal tmnit they have not been so pronounce 
^\^^ ^ competent, in such circumstances as here occu 
sent a second bill after the first is refused ; a 
it necessarily follows that, when a party avaiL 
of this right, the judgment of the second Lc 
nary is that to which the regulation in quest 
apply. The interlocutor, therefore, on the se 
kept the question entire. 

The object of the 16th section of the prese 
sederunt was not to settle this matter, but n 
reserve all claims of expenses arising out of 
senting of a first bill when a second is passet 
therefore, when it is there said, that the int< 
on a first bill shall beheld to be recalled in tot 
passing of a second hill, there is an assun 
what was the general understanding of the 
viz. that an interlocutor passing a second bill 
the interlocutor on the first on all points, exi 
of expenses. ••* 

Lord PitmiUy — Although he thought tlie 
'attend^ with considerable doubt and diiEcul 
also to the conclusion, on the grounds state 
•Lord Justice-Clerk, that the objection %vas 
founded. The interlocutor of the Lord Ord 
the bills is final as to its findings, but only so 
not competently brought under review. 
Lord AUoway said — That if the findings i 



tmxBnnois&massKm: 



5*f 



Fthe Lmrd Ordiuarjr iki tSueBUi-Qianiber 
itas^a Sfycial veixLiet, it was by no means. 
L^y could iberecallidjbjr another Lord Or- 
ugh it was undoubte^y quite ccmip^tent 
r to pas6 the bill. Chi the supposition 
CSiamberis a part of the Court of Session^ 
ded in the enactment of the statute, the 
the late and present act of sederunt was 

rrep^led the objection. 

» Ordinary. For the Charger, S^cenCj Sham 

% Agent. For the Suspender, Jameson^ 

Donaldson and Ramsayy W. S. Agents. 



M'Nair. 

StakS G90. 

40. 

tunt I2ih N90. 
1R25, Met 71l» 
and Uik Ju§^ 
1828, Jfcii. 7 
and 16. 




SECOND DIVISION. 



■'^ " f; 



XL 



19 February 1829. 



KENNEDY 

against 

CORSON'S TRUSTEES. 



*L' j\ 



5IGNATIOX. — An assignation to a lease^ 
tq the landlord^ hut not JbUowed by pos^ 
f powering the assignee to enter into pps^ 
r sell t^^ lease^at certain stipulated pe^ 
fl^e event of the tenant Jailing iopa^^jby 
tSyKjL^btdue to the assignee^ is not ^ valid 
YT grpv^ndof preference in a, question jiifh 
ff.f^ifsteeswMhave entered i^toj)Qsses^ 
ehoofofhis creditors. 




u» 



xmcmigjm of thb 



Kennedy, v. 

Corson's 

Trustees. 

Taek, 
AstiffmUion, 



^^s^y Adam Corson was tenant of the farm o1 
under a lease granted to him» his heirs, asf 
subtenants, by the late Duke of Queen 
nineteen years from ISIO, at a rent of ab 
Some years after, he executed an assignai 
lease in favour of Robert Kennedy, in seen 
tain sums advanced to hin^ by Kennedy, a 
of certain cautionary obligations which the 
come under for him. This deed, after spei 
several sums advanced by Kennedy, and th 
which he had become liable, proceeds thus 

* fore, and for Hie said Robert Kennedy h 

* and more sure payment of these sums, I ] 

* constituted, and ordained, as I hereby mi 

* tute, and ordain the said Robert Kenned) 

* and successors, my lawful cessioners and 
' in and to the said tack, during the whole 
' terms thereof to run, &c, with power t 
' Robert Kennedy and his foresaids, in tb 

* my failure in the yearly payment after s; 
' enter to, occupy, and possess the said lai] 
' the whole years and space mentioned in 
' and then to run, they paying the tack-dutj 
^ forming the other obligations therein coi 
' the said Duke and his aforesaid, &c. ; pro 
' declaring always, as it is hereby expressl] 

and declared, that the assignation before ^ 
by acceptation hereof, granted with and 
burden that I or my foresaids shall be enti 
deem the said lease by payment of the sai 
the said Robert Kennedy at the rate of \ 
the first day of September yearly, \rith th< 
terest on the whole money advanced, until 
debt is paid up and discharged ; and, failin 
and punctual payment thereof^ the &ai< 



09imT OF SBMIOIf. 



H§ 



totltledt and is her Ay empowered and itF*. \99^ 
d sell bf public r^up tbe said leasee ^^Keaod^ 
o iDfe and mf foresaids for the surplus^ Corsou'B 
[ off and deducting what is due to him^ .^..^ 
all expenses that may be incurred in ^^*' 
e same to sale in the way mentioned ; 
[flaring that) upon payment to the aaid 
uaedy Or his foresaids of the said debt 
ra, he isi by acceptation hereof^ bound 
to re-coBvey and assign to me the said 
daving hercfwith ddivered ap to the said 
nedy my duplicate of the said tack, to be 
ed by him as his oWn proper evidents in 
;, I consent to thd registration hereof,' &c. 
nation was formally intimated to the 
» Duke of Buccletich and Queensberry^ 
3r of the farm ; and a copy of the assign 
^troment of intimation were left with the 




this, Corson declared his insolrenGy; 
called a meeting of his Creditors, he ex«* 
t^-deM in their feVour, by which he q»e* 
d to thb t^udtees the lease of the farm of 



e of the tnist«deed| CorsOn was in pes* 
; farm, and of the lease itself. The tnis-> 
tely entered into possession of the farm 
d knaAaged them for behoof of the credi-* 
1 the rent, as it fell due, to the landl(Nrd« 
rwards sold a right of mib-lease of the 
Tke sale was a public one ; and Ken^ 
offeref, but Was outbid. The purchaser 
Lb4ease, and entered into possession, 
es having disputed the validity of Ken- 
iation, as Affording him any prderence 
sr creditors, he brot^ht tile present action 




IgT^ 1829. 



Kennedy «• . 

Corson^s 

Trustees. 

Taek. 




DECISIONS OP THE 

against tfaem, wMch concludes, timt it sho 

and declared, ^ That the pursuer is entiti 

of the lease and intimated assignation b 

ed, to enter into possession of the fores 

Cdshogle/ &c.; ' with power and auti 

pursuer to sell by puhlic roup the sai 

pursuer being bound to account to the 

Coztson and his said trustees for the s 

paying off and deducting what is due 

suer/ &c. ; and the said trustees ought, 

be decerned and ordained, by decreet foi 

and remove themselves, their servants, i 

&C. ^ from the lands and others foresaid 

pursuer, in the course of the action, depart 

conclusion of removing, and was allowed t 

libel by introducing the alternative conclu 

it should be found and declared that th< 

a real and preferable creditor over the fo 

to the extent of the sums contained in 1 

tion in security before narrated, payabl 

instalments of L.lOO sterling each, on th 

tember yearly; and that the defenders 

decerned and ordained to hold just coun 

oning with the pursuer for the rents am 

the foresaid farm, from and after their e: 

The Lord Ordinary ordered cases^ in wl 

For the pursuer, it was pleaded — ^An i 
der any mutual contract maybe assigne( 
ferred to a third party, unless in so far at 
fer is barred by the contract itself, or by 
of the interest ; and the right of the assig 
pleted by intimation of the assignment U 
other contracting party. The assignation 
forms no exception to this rule ; Emk. B. i 
2, 3, 4, 5 ; lb. B. ii. tit. 6, § 25. No doul 



:OURT OF SESSION. 



551 



to a lease may be completed by jJOfises-^^^^^' 
Lt that intimation is equivalent to pos- Kennedy ^^ 
red by the cases of Wallate f^. €femp.g^°^^ 

*r. 1730, Kilk. (Mor. 2809) ; Hardie 

ly's Creditors, 6th June 1794, {Mar.'^^^^^,,,,^^^ 
feoman v. ElKot, &c. 2d Feb. 1813. 
rock r. The Glasgow Bank, 29th Nov. 
decide the general question here at 
although the judgment of this Court, 
) in the case of Cajnpbeirs Creditors v. 
^ane, seems adverse to former decisions 
\B on this point, the House of Lords 
^e of that judgment, and remitted the 
^nsideration. 

> tlie defender's doctrine, the whole of the 
erty of the country woidd, to a certain 
ced extra commercium ; since, in many 
; in the natural possession of the subjects 
juld be quite contrary, on the one hand, 
3f the tenant desirous to borrow money, 
her Imnd, to that of the party disposed 
>an on the security of the tenant's right 
There is no real danger that the public 
ived by transactions of this nature. In- 
le assignment, which gives the right all 
of which it is capable, affords the means 
: the true title of the party in the actual 
nd no party, dealing with a mere occu- 
can safely rely on his possession without 

> his title. It is of no importance that the 
16 was not substituted for that of Corson, 
ociated with his, in the landlord's rental- 
)arties could not insist upon this being 

would be absurd and dangerous to hold^ 
lity of the transference depended on such 
nade by the servant of the landlord over 



\l 



i 



Mi 



DECISIONS OF THE 



Kennedjv; 

CorsonVi 

Trustees. 

Took, 



^ ^^"^^^^ whoaa ine^tiier the cedent nor assignee h 
troli 

Neither is it of any consequence that^ h 
of the assignation, the pursuer was not i 
entitled to sell the lease or enter into possi 
power to do either was, no doubt, depen 
contingency of the debtor's failure to pay 1 
ed in^alment. But the limitation of tii 
can never infer a qualification of the acti 
of the right, which is conceived in absol 
qualified terms. 

Pleaded for the defenders — A transf* 
lease, followed by possession in the pe 
tenant, can be completed only by the assi^ 
tenant entering into possession. Possessic 
necessary to the constitution of the real rij 
lease— ^tesV, iii, S, 6 ; ik iii. 9, 7 ; Ha 
J^Mb^ iii. 1, 35 ; Bell on Leases, 346 • II 
!S0-«4s, in like manner, indispensible to ev eiy 
transqaission of the right, whether in the 
assignation or giib-lease; Stair, iii. 1, 18 
2, 86 ; Boss's Lee. iL 206 ; Bell's Com. 
timation is a ceremony which has no applit 
to the transference of a lease. It is a gen 
law, to whicb a lease forms no exception, 
eiwr the subject assigned admits of being jj 
taken possession of^ the transference canno 
be completed than by possession. It is on 
tions ^incorporeal subjects, or of rights 
or actiiMi, that are or can admit of being p 
intimation. It is to the debtor that intim 
Ije made. Bat the landlord, having once put 
in fiossesaicm, has fulfilled his obligation, ei 
the cwditOP of the tenant; Ersk. dl 5, S 
principal tenant, after granting a sub-leoj 



OOUKT OF SBSSION. 



«n 



the assigofie must no doubt intuiiate the^ ^f^^'y ' 
n to the Bub-tenant, which is just an illus- Kennedy fh 
the general princiirike» feeing th%t all which x^^^ 
to the principal tenant was the right to de- -— ^ 

ment of the aub-rent; Sim's Trustee, SMAsiiffnaiUtm 

■» 
>. 

le of Hardie Douglas, founded on by the pur-f 
Toneously reported, as appears from Hie case 
upon which he seems chiefly to rely. The 
i is inapplicable. The assignee, besides inti-^ 
8 assignation to the landlord, had his name 
i the rental4x>ok as tenant, and granted sub- 
he cedents. In the case of Brock «. Cabbel 
B, Sdth Nov. 1828, it was held^ in cireumi 
Qch more favourable to the assignees than 
t::, tiiat the assignation was not valid agadnst 
not having been followed by actual posses^ 
judgment, proceeding on^the same principle^ 
}unced by this Court, in the case of Russell 
* Breadalbane, Sd Dec. 182S2 ; and, although 
lent was altered, under a remit by the House 
for re-consideration, this was upon a view 
ecial circumstances of the case, which were 
to raise the general question of law; aee 
f. ad July 1827, 

rgument on the alleged inexpediency of re^ 
sanction the pursuer's doctrine is obviously 
i in a l^al discussion; and, besides, suppose 
nitted that it might be ^vantageous to per^ 
ities to be created over leasehold property 
my change of possession, it would, in order 
]t frauds, be necessary to make provision fixr 
le of publishing burdens of this^description. 
I the first casein which it hasbeen maintain- 
intmiatian of an assignmeiit to a lease was, 
itfficient for the oompletion of the right It 



554 



DECISIONS OF THE 



Took. 



^^^\ ^ also is, in aROtber respect, unlike any whi 
Kennedy v. viously occurred. The deed does not transft 
Tnwtees. ^^g^*» either absolute or in security, to t 
It is a mere conditional transference^ de 
the failure to pay, at future periods, part 
specified in the deed. Intimation to the 
the meantime^ would, therefore^ have beei 
and nugatory proceeding. For, in place t 
ing him that his tenant was changed, it 
very reverse ; and before he could have 
pelled or entitled to receive the pursuer 
some judicial certification, or regular intiini 
cedent's authority, would have been requ 
dence of the fact, that the right had emei 
sequence of the stipulated condition beii 
Besides, the purpose of the assignation was 
to entitle the pursuer to enter into posses 
as tenant or sub-tenant, but merely, in a ce 
to expose the lease to sale, and pay himsel 
proceeds. 



The Lord Ordinary * assoilzied the deft 

* the whole conclusions of the original 

* as afterwards amended, and found them 

* expenses.' His Lordship, at the same ti 
the following note : — * The Lord Ordinarj 
' attentively advised this case. In the pi 

* of manufactures, which, in many iustanc 

* ried on in buildings erected ou ground he 

* and by means of machinery, the eombin 
' which may exceed ten times over the v 

* fee-simple of the whole estate, of which 
' of the lease is a part — ^when it is cons 

* few, or perhaps none but the lessees, are 
' to conduct the process of the manufattui 
' in these buildings, to bold as a tenet of la 



mvi^^a^.sBSBWSi. 



us 



msktaryi <» tlu> nianUfaiBlicre^^ naHeea fbd Ke^ned^ 
Ml.eiteriiito'actoairpoBKisiaiiicf tlM Conon's 

Trustees- *»^ 

■jgwrtiim qf raidi a leasfir; ^inte^t is lovefa ^^I^L^^^^^ 
K 8B7'iliat there oan be noaev m thait tlM*e 
rivinoii cannel be BdMb^ffiH^tuaA. 'Aiid» 
kmlrt;, it » a tenet wkkb is advent^ toUie 
est t>f the eoiistry. Seelii^ this to B^stxmg 
r liDcd Oidiiiaiy pttmouiiced tlutt intevlo- 
rcaseoffirodc, irhi<^ was altered bjr the 
ision» and appealed to die House clfLGfrds; 
to beiegretfeed that an uiii«ek)r point of 
aaedita poerent a jndgmeiiti Wherebyvin 
riinffitMitie8» tfas' law* wight lis^ne been 



fHENjonsiderBtion, both of the law and the) 
an case, the Lord .OsdiBarjr isihunibl|< of 
tit is not similitt' to that of iBroek/ nof 
' reported eHuse. In that of Brock theas^ 
» the subject of the lease was immediittet^ 
{S had iig^ to takeiastaat pQesession-^-^ 
bf granting a snblease to their cedents; 
leirient was left blank, as it was nnder^ 
he rent was to be the interest of themo^ 
dKjr Intiaaated their assignment to Mr 
^ Alva, the landlord — ^were aetiialijr en* 
Htsts in bis realal^book-^aDd Tent ^ Was 
t>i entered as paid for theiniin these 
Ikuovan Printfield Corhpanjry for Flcint^ 
inntrshaw mills (assigxiees^ Wiiliaia Btir-^ 
lU^ Bsqw cashier, and Robert firown, Bsq; 
far Glasgow Banking Compafi7)^L.188.' 
esei^case, ^beassignnsmtto tibe pnrsaer; 
as nob fior ibe pnrposeofi girii^ .him pos- 
1^1 exeept in:tke evetiii^^f ^.certain- instaU 
Oo 



556 



DteCISIOXS OF THE 



Tark. 



19 Feb. 1889. < menta of money not being paid at a disi 
KemiedyT. * ft&xxx the date of the assignation of the L 
CoTson'sTnw-c gefision, therefore, could not be given n( 

* because it wa» never intended to be gi 

* conditionally ; and, as a consequence of tl 

* to possess such a sub4ack was given to 

* by the assignee. Tlie former's right to ] 
^ bis lease^ and continued to be so till 

* bankrupt, when he conveyed both his lease 

* ing, and possession, to the defenders, wl 

* possession, and subset the subject to a sub 

* the consent of the pursuer, 
* It is tnie that the pursuer intimated 

* nient to the factor for the landlord. Bui 

* mation did not alter the nature of the ass 

* self. That factor could not enter the pur 

* as tenant to the Duke of Buccleuch ; for 

* signation, the pursuer was not entitled (e: 
*• conditions which might never exist) to s 

* session. It appears to the Lord Ordinar 

* rights arising from the granting of an or 

* and the assignation of one ah-eady grani 

* on the same principles. If a landlord gi^ 

* to A B, declaring liis entry to be at Lam 
^ second lease of the same subject to C D, 
I at Whitsunday preceding, and the tenani 

* second lease obtains possession, he is, 

* doubt, preferable to him under the first 

* the Lord Ordinary this appears to gover 

* Corson assigned to the pursuer his lease, 
^ dated 8th May 1816, in wliieh it was dt 

* the pursuer might enter to possession, il 

* did not pay L.lOO on the 1st of Septeni 

* When the first payment was to be mad 

* appear, nor whether that sura was paid 

* of September in that year. Probably i 



IhM. COURT OF SESSION. fiST 

^ mtma Hk k, tfiat the pursuer did not take poeeeseiea, ^^ ^^^ ^^^• 

* direetlj or indirectly, or syml)olically ; and in Octo-^g^J^y^ 

* bfr of same year, Corson became insolvent, and con-Co«on'8Trus« 

* fieyedhis lease to the defenders, as already mention- ..^^ 
'if ed, who took actual possession, and sublet the farm. ^^j^^^^ 
/ In the case of Brock* the Lord Ordinary was of opi- 

^ flion that the assignees had taken possession, though 
r^ it was not coq»oreal ; but here no possession was 
/given or taken, bef(»« another right wlis completed. 
i^ The Lcnrd Ordinary, on the whole, is now of opin« 
>^ m that tihe view he formerly took of the case was 

* mistaken, and regrets that thereby expense, trouble, 
and delay, hfive been occasioned to the parties.' 






The pursuer having redaimed — 

Lord AUoway said — ^The pursuer admits that his 
ifght was never «ade real by possession. Now, is 

fe any instance to be found in our books in which 
pi fordy personal right was ever allowed to compete 
Itith a real right ? 

|. Lard Gienlee.-^ think this is the worst case we 
pkave yet seen in which the general plea of the pursuer 
%8 beai ui^ed. 

f Lmi PitmUl^.-r^l am of the same opinion. It is 
% &r the worst case I have seen. It is so full of 
r tpedfilties, that really, Z think, the general question 
iioes not occur here at alL 

L^d JusHce-^Clerk. — I am of the same opinion. 

The Ceurt adhered to the interlocutor of the Lord 



* Their Lordahips saw no reason for acquiescing in the pursuer^s sug. 
fertkm, that the cause should stand over till the decision of the ca^ of 
KMck V. Cabbeli^ ia vlileh the opiniona of the Firat Division and Pemuu 
aat Ordinariea have heen required, under a remit from the fiouatflf 
1*0^% tulbsequeat to the judgment of the Lord Ordinary in the present 
cue. 

Oo2 



55S 



DECISIONS OF THE 



Lord Cringkiie^ Ordinarjr* For the Pursuer, 

J. Pedie, W. S. Agent. For the Defend 

son. J. Irvivgy W, S* Agent* 



TIRST DIJ^ISION. 



No. LXXXIL 



20 Februar 



KER AND JOHNSTON 

SCOTT. 

Bankktjpt.-— Seqi^estration, — // k not i 
objection to sequestration being awarded 
bankrupt, that the legidify of the debt am 
upon which the application for sequesfratio 
ed, is sub judice (ftke Home qf Lorilg, 

Ker and Johnston, as managers of the Li 
mg Company, having applied for sequestra tii 
Archibald Seott, formerly manager of a 
the bank at Langholm, Scott, inter atia^ obj 
the legality of the bill and diligence, nj 
the application for sequestration was foiii 
sub Judice of the House of Lords^ and the i 
been intimated ; and, therefore, it was not 
to found upon that diligence as evidence 
ruptcy. 

The Court repelled the objection^ as the 
act reqirired that a debtor, in order eflfectii 



!fe. ML COURT OP SESSION. 559 

Bt sequestration being awarded * against him^ must*^^®^- *®^ 
ather instantly pay the debt, or produce written evi-^gr, fc v. 
ience that it has been paid. s<^®^^;^ 

The Judges concurred in opinion, that if an Bppeai Bankrupt. 
the House of Lords, as in the present case, was held'^*^'^'^*'*^ 
ioffident to stop sequestration, it would frequently be 
In the power of a debtor to defeat the object of the 
baakrupt act, by suspending the sequestration for an 
indefinite time. 



Act Jameson^ A. Anderson, J. Bisset and John Morison^ 
Agents. Alt. P. Roberhon. T. Snudl, Agent. 

D. Clerk. 

T. 



I . FIRST DIVISION. 

No-IiXXXIII, W February \%^9, 

LINDSAY MACKERSy 

agmntt 

ALEXANDER MURRAY GUTHRIE. 

I Bankbupt. — Sequestration. — 1. Mere distance of. 

'. residence from the place where a bankrupt estate 
ii rituate does not per se ifffbrd a stfjffkient objec^ 
6oi^ to ike appointment of the party as trustee. 

% A creditor having stated,, in his oath of verity, a 
certain sum as due to him, and that he, on the 
other hand, was indebted to the bankrupt in a certain, 
enmnt which/ell to be deducted^it wm found not 
to he a si^gieient objection to his vote in the election 
(fQ trnstee^ that he had not sworn io thepreciset 



20 FeV. 1829. 




seo 



DECISIONS OF THE 



bakinti due, ttfier^inbtractiiig the debt dm 
it being held that l^ie preclw suhtniction 
cification was only required in the case of 
held by the cr^itor. 

3. The oaik qfterify ofti creditor as ft? thi 
te security hdd by Mm is sufficient prima 
deiice qfskch mine. 

4. A "treditot having^siwarn to a debt due to 
bill accepted by the bankrupt and a thu 
it was held to be a sufficient oh/ccf ion to ki^ 
U did nbt appear Ji-oin the hill itsdlf, nor 

' oath of verity 9 that the banlrnpt was thi 
primary obligant in the bill, althotigh ai 
had been made to supply this defect by a 
note annexed to the oath — this note not ha 
authenticated by the magistrate. 

IV tbe competition between these parties 
trusteeship on a, sequestrated estate, it was c 
Mr Mackersy, accountant in Edinburgh, tlis 
bankrupt's estate was situated in the county ^ 
the remoteness of Mr Mackersy's residenc 
both in point of law ancl of expediency, a s 
objection to his appointment as trustee; 
Eadie, Sd Dec. 18^. 

It was afiswered, that the mere distam 
itg\ial place of i-e^idencte could not be he] 
liish, 6f itself, a ^^ood ahd conclusiv^e perso 
tioA against a candidate for a trusteeship ; ai 
case refen'ed to, die CouH neither establi 
intended to establish, aty rule to the contr 
ah bbjectioli tfependiAg on the circumstance 
parliciilat case* The Lord Ordinary repelk 
jection; and the Court adhered. 

To one of thfe Votds far Mr Guthrie, it was 



I!fe.8$. COUBT OP SESSION. «6l 

ljUt(ke creditor, aft* Bj^cifyiHg the aum tipon which *^,J[^J\^ 
die clajmedy and stating that a certain specified deduc-Mackersjv. 
tkto 9aght to be made, as being the amount of board ^" ^"^ 
l^reed to be paid by her to the bankrupt, did Hot ac-SankrupL 
tlilfy deduct this sum, and ispecify, in her affidavit, ^'^''*«^^'*^ 
the precise balance an which she claimed, as was re* 
fttired by the 50th section of the bankrupt statute. 

It was answered^ that it was only in the case of se^ 
aBitied that this precise subtraction and specification 
Dtt re^uiwd ; and it ought not to be extended, by 
Jmdicatio^* to other cades where the statute had 
49t nade a similar provision. It was enough that 
tike imount of the elaim was specified in the affidavit^ 
llthoi)^ apt in the fonn laid down in the act. 
. Tbe Lond Ordiniary repelled the objection; and 
added the following note : — ' It is true that the Court 

* Inve held themselves i>onstrained, hy the esspiresa 
^ words of the 8tfljtute» io requii^e this subtraction and 
^' Jpecifii^ation of the bal^utoe claimed in the case t)f se<» 

* curitiite ; but it is not likely that it will be disposed 

• to extend the same strictness, by implication, to 
Itases where the aci has laot required it,' The Coilrt 
tillered, 

• li WW. directed to andther of the votes, that tihe 
Ofidilor, in sUting the value of an heritable security 
lAkh he held for his debt, had not stated the value 
«f it hwajide^ but had done so in an illusory atid co« 
IfltrabW manner* for the purpose of enaUJng him to 
ttRitfol the electicm by lankiofg for a lai'ge sum, while, 
tt teith, his whole debt ^as thereby sufficiently 
wered. 

It was akwered that, in this question, the affidavit 
^ the creditor as to the value of the security held by 
kirn was dofficient prima Jacie evidehce of such value, 
wi th«t the penalty iprovided by the act of PgrUih 



569 



DECISIONS OF THE 



Muckersj v, 

Guthrie. 

Jiankfupi. 



20 Feb. iw. jnent afforded a suflBj^ient clieck upon an 
of it. 

The Lord Ordinary repelled the objeetio 
ground that ^ the valuation of the security i 

* correct ; and where this is the case, it i 
^ vant, in this stage of the proceedings, to i 

• what principle the claimant has proceede 
^ ing his valuation.' 

The Court at first had some difficulty up 
jection ; and the Lard President observed, 
construction might open a door to heritabk 
to evade the act of Parliament, by placing 
value upon the securities held by them ; 
Lordships came ultimately to be of opinio 
tliis question, the valuation put by the ci 
oath, upon his security, was Bufiicient prime 
dence of such value. This, it was observe* 
general rule in all proce^ings on bankruf 
and, without it, there would be no end to 
f^ussions. Their Lordships, therefore, adhe 



To another of the votes for Mr Guthrie, 
jectedy that the creditor, in stating in his aJ 
amount of a bill a<x;epted by the baukn 
third person, did not swear that he believed 
nipt to be the primary obligant in the bill, 
liable to the other obligant in relief, altl 
was necessary under the act of Parlianieni 
true that an attempt bad been made to sup] 
f ect ia a marginal note, in which the credits 
that he believed the bankrupt to be the pri 
ligant ; but this note was not attested by 1 
irate, and could not, therefore^ be regarded 
theaffidayit. ^ /#JU ni 

. The Lord Ordinary repelled the object 
the Court, * In respect it does not appear 



# ^ 



|fi>. 8S. . COURT or SESSION. a6» 

'im dBtei 11th Noycmber 1885, nor from the oath^^^^^^*" 
'«f reritj applicable theretb* that Henry Stephens Mackenj*. 
fmaA^ real and primary obligant, sustain the ob-^" ^"^ 
* jection to ^e vote/ &e. sanimtpi. 

fir^Ngwton, Or^boaaf. ^or Gutfaiie^ Skene^ J. Gar-, 
don. And, Storie, W. S. Agent For Mackersy, 
Ikan of Feu:. (Moncreiffy) SoL-Gen. (Hope J Russell, 
/. fiennei, W. 6. Agent. J). Clerk. 

c. • 



SECOND DIVISION. 

Vo. h^XXlV, mo February 1889. 

FORBES 

againdt 

FORBBS: AND Others. 

PkQPERrf^Y. — A foad haf>ing been used om a puh^ 
He haree and Jbot road for upwards qf fort^ 
years, and it being also admitted that it had been 
nsed^ without interruption, as a public cart and 
taniage road ever since the introduction of carts 
tidb that part of the countrtf, being a period of 
about Mffy years^ound that a right was thereby 
uUMished to use it as a eas^t and carriage road. 

Tie pursuer brpi]|ght an action of declarator to have 
H found that the defenders had no right to a road 
across the Haugh of Auchemach. The defences were, 
that the road in question was a public road, and had 
l>^n used as such from time immemorial. Before 



2Q Feb. iroa. 




B6* 



DECISIONS OF THE 



gohig to proof upon their respective aterft 
parties lodged minutes, ih which the pursire 

* ted that the road in question had been usee 

* interruption, as a horse and foot road, by i 

* ders, and as a communication with the r 

* ing to the lower parts df the coiiritry, for a 

* forty years. On the other hand, he deiiie 

* road to have been used either as a public 

* cart or carriage road for ^ period of foi 

* but he admitted that the same had been us 

* defenders, without interruption, as a car 
' riage road, since the introduction of cai 

* thirty years ago, into that part of the 
The defenders, on the other hand, declared 
were satisfied. with tlus admission by the pui 
the road had existed as a public horse and 
witlhout interruption, for time iramemorial, 
public cart and carriage road ever since the 
tion of carts into that ^art of the country ; 
therefore, declined to proceed with any farth 

The Lord Ordinary, upon considering i 
nutes, assoilzied the defenders from the co 
trf the libel* 



• His Lordship tdded the following note : — * The faj 
V held to be established by the admis^nk in t|ie foregi 
* %nd answers, which are tantamount to a spcdfll verdici 
< ^rhe pursuer admits that the road in question has been 
« out * interruption, as a horse and foot road, by the deletK 
^ a^sommUiiication with the roads leading to the lower parts 
« try, for a period of forty years. But he denied that It htu 
<< either as a public or private cart or carriage rond tor a pi?i 
<« years, although he admitted that the same had bec'n u^ed t 
^ ders, without interruption, as a cart or carriage road^ ^nce t 
f< tion of carts, about thirty years ago, into that part of the co 
' * The admission that this road had been used as a horse n 
( ^nial that it had been used either as a public or private rin 
^ ^fUinly inipllos that it hafi b^en used as a public road for 



JTo. «4. COITAT O^ SESSION. &65 

ttie pursuer rfedaimed, b^A pleaded-^-That tbe ad-^^J^^^^^ 
jUtted facts only proved the right And possession of porbee v. 

Fordes, &c. 

. Property. 

P«d abolbr carta, tiseetfaie initoduction of them into that part of the 
J/fmH^; and, apoordingljy the. admission was so understood bj the de- 
Dfaideis, who answered, that they would have proved the road in question 
pilhc?e eiisted as a pubUc t;art and carriage, as well as a public horse 
l^idfiiot eommiinitiation road, Ac* But, saj they, as it is admitted by 
!|j8eiieial Forbes that it had so existed as a public horse and foot com- 
f to^icatlcto road, without interruption, for time immemorial, and upwards 
^tffflrty yeaxt prior to Novemb^ 1825, the commencement of the present 
imUm, apd as a public c^ and carriage road ever since the introduction 
Yif arts,* they, the defender?, would pass from any other proof, and rest 
fi|it!ilsadmis8iom 

*«ffaethedefeBdeE%disliiictly«hnouBckd to the pursuer their under. 
!«^rtaBding that he had admitted the road to have been, not a private scr- 
! vitode, bu't a public horse road, fot upwards of forty years, and a public 
f%troad since the iittitodfictlott of carts. If the pursuer did not mean 
fisadddt the public nature of th^ road, he ought to have intimated to 

* Ik defenders that they had mistaken his meaning, and thereby put it in 
**tli^ power to go to proo^ of their allegations. But he made no dbjec- 
f Hob whttever to the construction which they put on his 8dmiSsion>^ 
ftmi, theiefore, the JLord Ordinary holds that the road in question was a 
fpablic horse road, for aWve the years of prescription, and a pub- 
*'lk cart load sinc^ cart^ were there used. In this stat^ of matters, it 
*fttbeiBnodfiher«ituatiDathan were the whole public roads <^Scot- 

* hud before caits were introduced, which the Lord Ordinary imagines. is 
'noto^^ieat antiquity, -as he bielieves that people carried commodities 

* from one place to another in paniers, on the backs of horses ; yet it was 

* aerer heard of that men were stopped by any proprietor through whose 

* gnui)dsa public road conducted, because they were using carts to con. 

* Tey what had been always carried on the backs of horses. Lord Stair^ ii. 
' 7} 10; mentions the Boman servitudes bf to*, ac/u« and ma, and adds, 
** Our custom stickeih not to this distinction, but measureth the way ac- 
o'ooidii^ to the end for which it was cifnstituted, and by the use ibr which 

* it m introduced.' I'hlsis 'at)plicable to private servitudes; but the 
*|iiiidple applies eqUaUpr to pUbUc toads as to private. His Lordship 

* aiji^ < Public ways are those which are constituted for public use,* 

* vhidi IB self evident. N oW, if a public road be for the use of the public, 

* and the law r^ards ' the end for which it Was constituted,' it is as clear 
' M anj proposition can be, that when men introduce generally carts 
' dnmi by horses or oxen, to transport their commodities from one place 

* to another, instead of carrying them on liorses, the right of public road 

* mutt be extended to that object This appears to have been undetstood 
' bj the pursuer himself, or bis predecessors ; fbr he admits that the de. 
'fenders used carts^ without interruption, ev^ since they were introduced 

* into that part of the country, which he says is about thirty years ago. 



aee 



DECISIONS OF THE 



n¥^. 1829. tije public in a horse and foot road, and did ] 

Forbes v. ^ah any right to a cart and carriage road, b 

-contrary disproved any such usage. 



Torbeg, &c» 



Ffopertit, 



The Court unanimously refused the note. 

IjOT^ Glenlee. — I could understand tha 
road had been lined and marked off by walls 
ces, and were so narrow that no cart cou 
the public might have no right to make it 
and thus might be confined to the use of it a 
qr foot road, But that i? not the present i 
the summons proceeds on the allegation xlu 
fenders are in the practice of using it by driv 
carts and carriages ^o\\g it, On the otlier 
the defenders had only acquired a servitude 
passing over the pursuer's ground, his plea 
very weU founded, that they were not entitle 
der this servitude more burdensome by con 
liorse or foot-path into a road for carriages. 
4 case, the maxim, tantum prescripium qitan 
aessum^ might perhaps apply. But when tht 
^mitSj as he has done^ that it is ^ public roi 



* The \jOt6. Ordinary, therefore, {tssenU to the right of tlie ( 
^ use carta as they hf^vf done for thirty years bygone- 

* There is in the summons f^ conclueiun thiit, in caee th 
« should be found entitled to a road, the pursuer, on giving th 
« at a short distance, should be entitled to shut it up. The 

* nary does not cpnsider this to be proper, or even cornpftc 

* Court to entertain, in the first instance. The jvirisdiction 
f Itnds, ferries, and bridges^ and of turning round public roadi, 

* the commissioners of supply, justicee of peace, sberiffa, kinls 
<. barons, by many statutes, and parti<?ahirly fur tuming roun 
« 1661,, c. 41, and 1685, c 39. These imigistrates, liriug on tl 

* alone the proper judges In thtf first instance. The right a 

* tion of this Court is only to redress any grierancej or correci 

* that they may commit The former see the localitie*, ai: 

* them by actual inspection — the latter know them anly by th( 
< pthers, and by charts.* 



ir«. 84. CdVRf oP sfissioiif., m 

to the whole world, he admits away his whole case. 2^Fehji8» 
^Du8 implies that the surface of the road belongs toiporbe«tv 
•iepubUc, aild that they ai'e entitled to use it in thfe^^'^^^^^- 
tanner most beneficial for the uses in which public Prop^ip, 
are employed. This is altogethier difierent from 
case of a mere servitude road, where the proptie- 
of the land is oWnei* of the road, subject only to 
servitude which other parties have acquired over 
But when a road is once established to.be public, 
proprietoi' of the latid through which it passes, 
being owner of the road, has no title to complain 
tf any person making such use of it as is most expe-» 
lient. I, therefore, think that the interlocutor is well 
vonded. 
Hie other Judges concurred^ 

Lotd Ordinary, Cringleiie. Act. Sol. Gen. (Hope) MaicL 
wnt. Alt James Gordon^ Skene. C F. Davidson 
lad /. G&rdany W. S. Agents. F. ClerL 



SECOND DIVISION. 

No. LXXXV. 20 February 182d- 

GEORGE BLACKIE 
against 
RICHAKD AND ANDREW MILLAft. 

WaiT,r— Stat. 1681, c. 5. — A writing sustained as 
a warrant Jbr summary diligence, where the testing 
dause contained the names and designations qf the 
writer and witnesses, and was signed hy the parties 
onsd witnesses, hut did not bear to have been sub* 
Krihed in presence qfthe witnesses. 



fl69 



DEqiSIONS OFTHE^ 



90 Feb. 18«9. 



filaclcie V. 
Millars. 

ITrtt. 

StaL 1681, e. 

6^ 



A^DI^QW Mli^L4it waa bound as apprentice to ( 
Bl^Q^i^, and liichard MUUr was one of th 
tioners. Ttie testing ol^us^ of his indenture 
th^ fQUQwing t^rni8:r — * Jn witness whereof, 

* preseiits w^ wrjttea op this and the two pre 

* poges of st^mp^ paper, by Andrew Milk 
' withip-desigQCid ^ppreatice, daj% month, and ] 

* God r^epectively above written, before thes 
' loesses, Gwrge Huttog, clock and watchma 

* Mu^elburght pre^^ptly in the eruployinent 

' 8^id George Bls^kie, and Jamed AVightman, 1 
' iu Edinburgh.'^ 

The apprentice having deserted his service, 1 
gave a charge to him and bis cautioner for imp 
of the indenture, and for L.5 penalty for alleged 
of contratet. 

The latter Suspended, inter eiiia^ upon the j 
that the writing was defective, in as niucli as tl 
ing clause bore only that the deed had been \ 
on a certain day in presence of the subscribii 
nesses ; but it did not bear either the date at w 
had been subscribed, nor that it had been sub 
at all in their presence. They offered also to 
that it had in fact not been subscribed at tl 
which it bore, but several months afterwards 
they maintained that they were entitled to it 
this objection in the present action, without br 
a reduction of the deed; because, by the tei 
the testing clause, which did not import that 
subscribed in presence of the witnesses, or on an 
ticular day, they were, of course, let in to tl 
quiry without improbating any thing that apj 
on the face of the writing. They also pleadei 
although the indenture might have been honiol^ 
by having been acted upon, it could not be ma 
warrant for summary diligence, being defect i 



Vo. 81. COURT ojf i&ts&iQii; aei 

Mk an important part as the testing clauae; The^^^JliS^ 
im of Gonlon v. Murray^ 21st June 1765 (Mar.BUckd^^ 
UfilS) which is the only authority that can be pnn^^"^ 
Ikced for sustaining a testing clause such as this» is fFrit. 
Utogether inapplicable, as the writing there founded f^ '^^* ^ 
bi was dated previous to the statute 1681« 

^ The Lord Ordinary pronounced the following ia- 
Moeutor : * In respect that, by the act 1681, it ii^ 
^ not requisite that the attesting dause shall cotitain 
^ tiie narrative that the deed has been subscribed by 
^ the parties, and that the actual subscription attested 
' by witnesses, designed in said clause, supplies the 
* defect in the narrative that it was subscribed ; re^ 
^ pels the reasons of suspension ; finds the letters orders 
^ I7 proceeded ; and decerns,' &c. 

The suspenders reelmmed ; — but the Court adhered. 

The Lords were much moved by the authority of 
fhecase of Gordon v. Murray, 21st June 1765, and 
tpon that ground chiefly adhered to the judgment of 
the Lord Ordinary, in «) far as it repelled the reason 
of suspension founded on the informality of the writ* 
iBg ; and remitted to his Lordship to hear parties fkr-* 
tfier upon the other reasons. 

Itordf AUcway. — I passed this bill of suspension 
^ thft Bill-Chamber, because I was disposed to think 
that there was a great deal in the suspender's plea {' 
M if the question were open, I still should entertain 
^«rf great doubts, chiefly on this ground, that, by the 
Matute 1681, persons subscribing as witnesses, who 
^^ not seen the party subscribe, or heard him 
^owledge his subscription, are declared to be liable 
to the penalties of f(»*gery< Now, it appears to me 
^t it would be Impossible to prosecute the witnesses 

^^ the present case, under that clause of the statute, 

•^^ though they should not have seen the parties 



m 



QBi^ipiP^S OF: THE 



Bladder. 
MiUan. 

Writ. 
6. 



*^J^J[^ wWiqr^WK or Mt^ b^Qid itbem adcnowledg© 
stai^ons jM^dkuS^y bjr^thf^^^ the test 
they AoSfiot hold iWete^lVes out as witnes! 
subscription, but only to the writing of 
However^ upon reconsidering the casef I 
Interlocutor right ; but my opinion ib foiin^ 
ly upon the case of Gordon v. Murray, 
1765, ^id another ease ineW;iotted by Mi 
Testing Clause of Deeds.) It is impossn 
tinguiah the former of these cases from tfai 
and, in a matter of this kind, ti^e must b 
authority of a previotis^deeision. If this ai 
liament expressly required that the testi 
(Should mention thai the parties subscribed i 
of the witnesses, of course it would rule tl 
case> notwithstanding the decisicQi in the ce 
don. But the statute does not require this 
that the Aameg of the M[itnesses shall be 
in the deed, and that, in point of fact, they 
dign without seeing the party subscribe, c 
him acknowledge his signature. Thei^fore, 1 
safest course is to follow the precedent In tl 
Gordon. ,,t 

The Lord Justice-Clerk.-^I concur with 
loway, and on the same grounds. The ca^ 
is precisely the same as the preset. i 

'Lord Gl^lee. — Upon the whole, I am t 
posed to concur with your Lordships. 

Lord PitmiUy. — I confess I at first the 
interlocutor was wrong ; apd I am not satif 
the reasons assigned by the Lord Ordinar 
peel of which he has repelled the reasons c 
sion. But the decisions refeired to by Lord 
and particularly that of Gpif^o^i.t^ Murray 
tainly inr point. It is iinpo^jible to distlDj 
present case from them ; and, upon that gro 
that alone, I am disposed to adhere to this int 



Ifci«6. OOUHT OP SESSION. -571 

liiliOlduiim Oniq^ A\ct. Dean of Fee. (Mmtreiff) 
. Shne, James MiUer. Alt. JPorsy^s Welsh. Hv^ 
*' Watson, W. S. and J. Stewart, Ageptfl. 7*. ClerL 



:•* 



r- 



FIRST DIVISION. 

|Jfe.IiXXXVL 21 JPfeftrtt«/y 1829. 

ADAM AND Others 
ogaiMt 
u'. . • DENNY. 

• ■ 

mficmi.^'^AxrtioisrE^B,^^ in a suspension 

\ fimd wt'luAh in ike expenses incurred in a rela^ 
\ ^ffoeess ^reduetiont conjoined with the suspen- 
mm. 

^NALD having been charged at the instance of 
iiy upon a decree of the Water-Bailieof Glas- 
for paTment of the expenses of a process, pre- 
a bill of suspension, which was passed, and 
and others became his cautioners in the sus- 
don. M'Donald at the same time raised a process 
redaction to obviate any objectioa to the competen- 
r of the suspension. These two processes being con* 
» the letters were found ori^erly proceeded, and 
rreasoitf of reduction repelled ; and McDonald and 
caatfoaers found jointly and severally liable in 

A dmrge :for these expense was given to the 
•wioners, who brought the present suspension of 
•rt dui^e, on the ground, that under their bond of 



Sfi 



DECISIONS OF THB 



Denny. 



Cautioner. 



9iTeb.jim. 4*ution/th^' wei« only liaW^ the 
▲dam, 4tc «. tbe inJtnor court process, and the expi 
su^ension, but that they were not liabh 
the expenses of the process of reduction, 
not raised at the time they entered into 1 
caution. By the bond of caution they l 
selves to pay any sum that might be foun 
suspension ; but they were not caut&nei 
duction, which was raised for a different p 
that of th<^ suspension, to which they ha 
their concurrence. The reduction was nc 
to support the suspension ; and if they hac 
whether they were willing to incur farth 
bility in a new action, or whether sudh 
should be raised, they would have decided 
in the negative. The suspenders, at the 
raised a summons of reduction of the dea 
«8 regarded the expenses of the ^mvioos i 
applicable to them. 



Answered for the charger.— ^The expe 
for are truly and substantially the expe 
process in which they became cautioners, 
tion was a mere step in the suspension, w 
was conjoined, and was necessaiy in orde 
the party competently to try the questio 
in the suspension. 

The Lord Ordinary, in respect of the s 
reductiou which bad been raised, sustaine 
^ sons of suspensito to the extent of JLG 
' be the amount of the expenses' relative 
vions process of reduction^ tad f ouid 1 
liable in expenses. 

Tie Court adhered.' 



'?/^ 



^ fuBe»y Agent. Alt £eau. C. Ftther, Agent. 

to 'ii '♦ *' t i . ■ " . . ^ . . ^ • /p^. . - 

IT*; .1 ..•/...,;•... . .' . . .. 

|j ; ,ii' . -j^ . » .: * • I I . f . I - 

■J , . - - 

Wh/jT .; ' / • I . . , . . ' i . 

Ml •.-.■.. • 

« . SECOND DIVISION. 

tol^. jLXXXVIJL .81 FebfMimf 18^ 

|b> COOK 

^ I : . . agahut 

, €UTHILL« TRUSTEES. 




lUfT. — Stat, 54 Geo. III. c. 187. — A per- 
motiA6nBi$e.tommgmikm ike demriptkni of 
Utk:l6tk seeiianj^ tbe hmkmpt act, is Uabk Ai 
9equutration as a builder^ provided his dealings in 
furchasing or building houses for sale have been 
'mch u fUtturSf and to such an ewtentt as to be 
"material and pemument source qfpn^ and. loss. 

Ciqi^edfiNr' sequestration of the estate of Archi- 
[CoUiiU^ desigiied in his petition writer and 
r in Glasgow. This was oj^KNsed by the trustees 
\ Mrs Cuthiirs marriage contract, upon the ground 
Ast Ifr Cuthill was not a merchant or trader, and 
piaai, m any other way, come within the descrip^ 
Wnof" persons numtioned in the 15th section of the 
flMnpl statute^ against whom aloite sequestration 
MUL^beawardedi. _ 

!^A eondescagdenoe and additjcmal condescendence 
*^ answers were given in, by which it appeared that 
Vt GaUiiU's ordinary and reguhir profession was that 
^ a writer in Glasgow ; but that, from the year 

Ppa 



«T4 



DECISIONS OP THE 



Cook 9. 

Cuthai'8 

Trustees. 

Bankrupt, 
Stai. 64 Geo. 
UL e. 137. 



ai F<1). 182^ 1708 downvPlftgd8» he had been engaged in 
contracte with' builders, feuing land for the ] 
of building houses for sale, and that he had o( 
ally embarked large sums in such specu 
Many and the most extendi v^e of these conce 
been wound up and brouglit to a close long be! 
period of his insolvency ; but he was still eng 
such undertakings, and, in particular, in on 
concern of ground and houses for sale, which 
ed vupon him, as part of a bankrupt estate, ii 
he was one of the cautioners for payment of t 
position, and of which he assumed the mans 
as trustee, having himself the material mh 
the proceeds, in consequence of his cautionary 
tion. 



The Lard Justice^Clerk remarked ^ that th 
been of late so many applications, in similar 
stances, for sequestration of the estates of 
in various professions, and only remotely, if 
engaged in business as merchants or traders 
was desirable to take the opinion of the whol 
upon the present case. 

Cases were, therefore, ordered for the pui 
consulting the other Judges, who concurred 
following opinion : — 

* We are of opinion that Mr Cuthill is liali 

* sequestrated as a bankrupt, in respect of his < 

* as a builder. 

' It is truer that some of his concerns in < 
f are of an old date, and that in otiiers of 1 
' may be, doubted whether he was acting for 1 

* behoof, or only as trustee for others. But, 

* all these out of view, it appears to us that 
^ remains to eotitle Mr Cuthill to the deBifrn 

* a builder/ 



COURT ^P-SE8SIOm 



575 



lamf^ofh Nttetfii. Alu JSdJfGmi (Hope) 

Campbell , ^ Macd(maU and Jfohn Mow^qy^ 
gents- R. ClerL 



1 Vi^ilW 



SECOND DIKISION. 



ZVlll, 



21 February 1«29. 



MATHIESON 

against 

RPDOWALL OF LOGAN. 



JuRismcTiON.— ?FXe» the Judge Ad- 
granted an interim interdict pending the 
i of a causey it is competent for the ag-* 
arhj to remove the process into the Court 
I, by bill of suspension, praying for recal 
erdict, and fw letters of suspension upon 
ir the ejrpenses. The Court, however, had 
hts iihether the original action was apro^ 
'ime cause. 



jc contracted with the charger to build a 
rbour upon his estate of Porthessock, and 
same in repair for a certam number of 
found caution for performance ; but, be- 
ll of the present question, one ef his cau- 
wlioin the charger principally looked for 
id become insolretit. During the conttnu- 
[•ontract, and bcfwe the l/rorks were entirely 
several disputes arose between the parties.' 



fl7«^ 



DECISIONS OF THE 



] 



M^Dowall. 

Process. 
JurisdietloTu 



01 Feb. 1829. whidli became ttie stibject of different aetiom 1 
M^thil^t^, the Sheriff^bulrt and iti the Court of SessioiiJ'l 

lb the iheantime, Mathieson contracted W 
commissioners for the improvement of the har 
Leith to make an extension of a certain piej 
In order to assist hint in this operation, he wa 
to remove a 6ort of lighter or floating raft, w 
had used in the construction of the piers at I 
sock, from that harbour to Leith » 

Mr M*Dowall applied to the Judge-Admiral 
of Suspension and interdict, in order to prevent 
moval of this lighter, which he alleged was n 
for the safety of, and in order to complete, the 
to unfinished works at Portnessoek. 

The JudgerAdmiral found that the possessoi 
tion involved in the bill of suspension was oi 
maritime nature ; and, therefore, repelled an ol 
to the jurisdiction of his Court ; passed the 
the purpose of trying the question ; and in tbi 
time granted the interdict as craved, 

Mathieson applied to the Court of Session 
of suspension, for recal of the inteixiict, and 
ters of suspension upon caution for expenses : 
l^ist, for a remit to the Judge-Admiral to n 
interlocutors, and to dismiss the respondent's 
suspension, &c. * 

The first bill, being "presented during vacati 
Refused by a Lord Ordinary, who issued a n 
pressing doubts of the competency of such an 
tion in the circumstances of the case. 

A second bill was presented, which was ap 
to be answered by an interlocutor in the fo 
terms :— * To be seen and answered withii 

• days; and ordains the respondent, in the fi 
' swerd, to state whether the caution found 

* suspender is still sufficient for enforcing «] 



com^QF^ m^ioijii 



fTT 



tor of tlie O^hter, qr ojf ai)iy.,par^,^ei^of,Mathi^ 
' wjbat, preciae title in Iffw b^, c;la|«V» . PK>8. M'DWL 
urepf ;^ and also to state ar^in^l?i?» ijqi^hatproce**. 
^ oeiiipl^e]^ has not fulfilled hi$' cqnte^cl^'^**''*'^''^ ' 
fithput any argument.: 
m^eoJb, in his ansWers,^ stated that he was 
with thf security found by the compla^er 
^rmanee of his omfa^act, which was now di- 
r the insolvency of one of the oiutioners. 
claim any property in the lighter* except 
iiain attached to a crane which was built 
hich the complainer, in his bill of suapen- 
fered to leave at Portnessock* He stated 
ttSt in which the works made by the com- 
^ortnessock were imperfect and incomplete, 
lich were already the subject of disputes 
[)oth before the sheriff and the Court of 
d* finally, he pleaded that the present ap* 
is incompetent* being an attempt to bring 
le caujse for review of this Court, from the 
Imiraltyji by bill of suspension* before any 
cutor on the merits had bee^ pronounced 
ior court. 

lerits* the suspender pteaded-^l. That the 
Plication by bill* made by thie respondent* 
cUctiii the Court of Admiralty* was incom- 
c^use not beiijig properly a maritime ques*' 
lat Cqurt li^vi^ no jurisdiction to decide 
4m ^^fiupin^ary ^pplicatipA by bill, 
the xe^fpi^i^iSD^ ^lad no rigl^t of lien or pro- 
h ep^l^ Jiim,jto i^event the removal of 
in.quesftiqi^^ . 

ondent answered^l. Th|tt it wa« compe- 







I il:i 



ri ''i : 



»-s, 




578 



DECIBIONS OF THE 



M'i>owaU. 

Pruce$s, 
Juri 



2\ Feb. ^9^f^t{(m Ae Jpidge-A^niiral to entertain si 
Mathiesont*rtioil<]a^»;a,!$j»W»aiy application by bill 
aiofl^i^od t0>'fquit,anr interdict ; and that ^ 
oeedii^slaii^d;,pa£;sqd witliout notice or obj 
late case before the Fii^t Division betweei 
missioners of Leith Harbour and the Ma 
Edinburgh, l«th Nov. 1828. 

II. That the resfiondent had a right to 
removal of the lighter in question, because 
of the loadunery necessary for the perfonr 
&uspeiider's contract with him. 



The Court unanimously passed the bill, 
ed the interdict. 

T/ie Lord Justice-CkrL — It is certain 
novel proceeding to apply to the Judge- 
this summary manner for an interdict ; bi 
to have passed without objection in the c 
to between the Commissioners of Leith Be 
Magistrates of Edinburgh ; and, therefore 
{»K)bably not interfere with the present jud 
ly on that ground. But there is anothe 
inquiry here, viz. whether this be a propi 
question. Now, I am clear that it is 
lighter appears just to be ])art of the mac 
ployed in the construction of the pier, It 
it floats ; but we can scarcely hold it on t 
to be a vessel of which Mr IVrDowall can 
this summary manner by an application t€ 
Admiral. We can, however, go no furthe 
thau to decide on the question of interd 
.the parties to settle the question of right, 
have thought fit to raise in this litigation, i 
of Admiralty, in addition to all the oiIj 
twhich appear to be pending between then: 
know whether it is necessary for us to 



e&unt^vf^/s&s^i&it. 



m 



■Jufi9dMn^ 



k to^iiiterdkt the *eiiio^ ^ tith ik^Um^ M- Dtfw«ii 

4o Rcai his intejrdiet^ otf.«totioti, if your" 
Bink it necessary. 

?i»^ concurred ; and thought it ttineiE^- 
rmmie Whether this was a proper ixiariiime 

t. . ■ >. . , 

hway. — I do not think any caiition can be 
[ never heard of such an application as 

Judge-Admiral, in a question which, I 
sarly not a maritime case. I cannot sup- 
rour Lordships would hold a contract to 
y or pier on the sea-shore to be a maritime 
nd this lighter is just part of the niachi- 
or that purpose. But it is unnecessary to 
t. All the questions that can arise he- 
nparties as to this harbour appear, fr<:^ 
itive statements, to be now depending in 
before a Lord Ordinary; and I think tbe 
f. will be to pass this bill of suspension, 
le interdict, in order to put an end at once 
roper action in the Court of Admiralty, i 
imilly^ — ^I never saw a case that appeared 
-e clear than the present. I think there 
a more groundless claim upon th^ merits 
r^Dowall's claim of a right of retention over 
The next question is, whether it is pi*o- 
ntlme case; and on it I am equietlly clear 
istract between these parties Was not a ma- 
trax^ and that this vessel is just pai^t 'of the 

employed in executing it. iTie only re- 
iiiartion ii; what we shilll dowith the inter- 
l flsta of opinion that it mu^t be recalled 
\y caution. 



9m 



IXECBSKmS'OF THE 



fiirfitfiYfm 



nKkfiiK me Lord Justu^Clerk^^ now entin 
^f^^^^^^trhby^nir I^rdsM^^t^ iiimecessary 

jP Bowdl. gjuy c«itionvOr to send Hiese parties bi 
PfoctftJii Court of Admiralty^ where there can n 
kmgeiraiiy queetieii remaining between the 

Act. Jomewfh Shaw. Ak. 27mn ^ Fac. 
MarshalL John Donaldson^ W, S« and « 

W.S. Agents- Clerk/ 

• '' » \ 



FIRST DIVISION. 



No. LXXXIX* 



24 Februm 



JOHN BELLENDEN KER and JOH 

TEEL 
against 
SiE ROBERT WILLIAJVI VAUGB 



i«( vn\H 'I* 



f/ff»ip<i« 



i^OEEIGN, — TESTA3IENT.— -TbUST, — A p 

ing conveyed generally her whole pro^ 
particularly her real estates in Scotland 
mal trust-settlement^ with instructions ii 
tees to sell the property, and divide th 
qfter payment ^f her dehts^ among sm 
as^ I shall name by any writing under 

* or /or suck purposes as I shall diret 

* writing ; and in default of my ma 

* writing, or giving directimis in wrifin 

* pay over the residue to my next of kin, 
^ to the law if England^' i^, ; and a wri 

structians (naming the individuak amon^ 



C0KBT OF jnKaoMt 



flW^.i 



TntH, 



'in Mngkmd hj^0i^ trusipf^wkidkww ^aUd^t^^Z 
^ tm^ihmj^ilka^^unilryi hut nU mUh^i^^'''^^^ 
wc^rdit^ tb tke Jbrtns;^ &e.law\qf'S9ot*For^igt^ 
fund^m^anae/kmmitheineimieeqft^ 
f ike truster i fir reducing this writing as 
al to carty reed property in Scotkmd^ Aat 
ot necessary that it should he thus autheum 
and that it was stiffident, along with the 
%/, to carry the property from the heir. 

executed 1st March 1819> agreeably to the 
3, Lady Essex Ker conveyed, in favour of 
stee9 (of whom Ihe defender was the 8ur-« 
ler lands and estates, real and personal, in 
instructions to sell and dispose of the same, 
the proceeds, firsts for the payment of her 
1 then to pay over the residue and remain- « 
le said proceeds to and for the use of any 
*. persons I shall name by any writing un-« 
Land, or for such purposes as I shall direct - 
(vriting ;* and, in default of my making such • 
or giving directions in writing, then to pay- 
residue to my next of kin, according to the* 
ngland, or statute of distributions.' 
ter (20th August 1»19)» Lady Essex exf.« 
licil or testament, directing the trustees to « 
ety of legacies (some of them destined to' 
IS themselves) and to divide ' the remainder- 
property^ among various individuals and' 
instituticms ; and the trustees were ap-* 
ecutors. The testament was* not signed by 
X, noF by notaries for her ; but her mark 
^ to it^ which bore to be attested by three- 



24 Feb. 1829. 




588 



DECISIONS OF THE 



Upon the death of Lady Essex, various 
arose, "with regard to her landed property in 
betweeil the jiiir^ers, her heirs-at-law, who 
up titles to the lands in Scotland^ and the i 
the trustees utider the deed of 1st March 18 

The'pui^ufers, first, on the ground that tl 
August 1819, although sufficient by the la\^ 
land to exclude the right of the next of kin 
trust-deed, was insufficient to affect heritag 
land, raised an action of declarator, in which 
tees, the next of kin, and the nominees undei 
of August 1819, were called, as defenders, 
found * That the foresaid Will or writing above 

* bearing to be dated the 20th August 1819i 

* cuted on death-bed, and is defective in the s< 

* and fbrms required by the law of Scotland, 

* heritable property in Scotland, or in any r 
'way to affect such heritable property to i 

* dice of the pursuers, the heirs-at-law of th< 

* Lady Essex Ker. And, farther, that the 

* the said trust-deed, directing the said tr 
' default of her making such writing, or j 

* rections in writing, in the manner foresaid 

* pay over the residue of the said estate to ai 

* her next of kindred, according to the law 

* land, or statute of distributions, is inept ; 

* bile for the purpose of conveying to, or v 

* the said next of kindred any right whate^ 

* said residue, and is void and of no effect, 

* concerns the estates and heritages in Scotia 

* belonged to the said Lady Essex Ker ; anc 

* purstiers, as heirs foresaid, have the only 

* undoubted right to the residue of the sai 

* conveyed by the said general disposition, t 

* ing the debt of the said Lady Essex Ker/ 



COURT OF SESSION- 



583 



ice, it was pleaded for the trustees, that the** ^®^- ^*29. 
stnictions must stand good until i^uced* Ker,&r«r • 
rd Ordinary, * In respect that the right of ^«"«?*w«* 
suers, as heirs portioners of the ,de<?ea3e4p^jj""*" 
»ex Ker, is excluded by the settlemen.t exe»- Tettammu. 
' her in liege paustie, an4 that neither the 
d, nor the deed bearing date SOth Aiigust 
e sought to be reduced in a competent ac- 
ids that the pursuers have no interest to in- 
he present process of declarator ; and, there- 
oilzies the defenders from Uie conclusions of 
mons, and decerns.' But the Court, i^pon 
a petition with answers, found / That the 
) cannot insist in the present action of decla^ 
ad, with this explanation, adhere so far to 
rlocutor reclaimed against, and refuse the 
f this petition.' 

irsuers next raised a multiplepoinding, in 
! Court * sisted procedure imtil an action of 
n is brought and comes into Court.' 
fter, the pursuers brought the present ac- 
eduction of the deed of 20th August 1819> 
ts forth, * That the said will or writing 
oved in the Prerogative Court of Canter- 
inform to probate thereof, dated 18th July 
rhat although the said will or writing, so 
may be effectual, by the law of England, 
ection for the disposal of property situated 
and, and though the trustees aforesaid may 
celled to dispoi^e, in terms of it, of the. whole 
Y in England, according to the direct^na 
contained, yet, being defective in the solem- 
iquired by the law of Scotland, the sdd will 
ng is invalid and ineffectual, as a direction 
aid trustees to make over the said heritable 




>■' 



■t 



1 



su 



DBCISIONS OF THC 



Ker, 4-e. V. 
Vaughan. 

ForeiffM, 

TeitamsnL 

TrwL 




UFeh. 1890. ^ esta&s, situated m Bcbflahd, which Moi 

* sidd Lady Essex Ker, to the prejudices 
' suers, her heirs-at-law, and is reducibl 

* instance ;' and eendudes thM the diud' de 
August I81d ought te fee reduced^ oH <4ti«if 
^ it is not silbscrSbed hfVbe liatne of tfie 

* Essex Ker, t*i6 grwitcr thereof, but oii 
^ iross or mark : And, fiirther, the pers 
^ n^mes are subscribed thereto as wltnessi 
^ named or designed in the body of €he 

* and the writer thereof is neither nan^ 
' signed.' And, the deed being thus reduce 

* ought and should be found and declarer 
^ pursuers, as heirs-portioners foresaid, hav 

* good and undoubted right to the residue < 

* estate, conveyed by the said Lady Essex \ 

* said trustees, by the said general dispos! 

* payment of the debts due by her, and liij 

* defenders have ho right or claim Ait^batc 

* said real estate in Scotland, or the procee 
^ under the said will or writing.' 

In this action, after certain prelimihar 
for the trustees were disposed of, (vide 1 
2d Feb. 1827) the Lord Ordinary prdnoi 
following interlocutor: ^ In respect that 1 
writing, or instrument produced, howeve 
it may be as a will to convey per^nal or 
perty by the law of England, is neither 
the party, nor tested in terms of the statt 
finds that it is altogether ineffectual ad' 
affect a real or heritable estate iu Scotlao 
the defences ; sustains the reasons of tedui 
duces, decerns, and declares, in tenns of ^ 
tive condusions of the libel ; and, biefnre £e 
dwer, appoints parties to be heard.' 



COURT OF SBflSIOlf; 



W9 



ri, on a redaimiiig ncfl^ for the defenders^ ^^tf>-^<2t. 




for the pursu^^^It i$ indisputabjie that aporeigm 
dy not tested according to the fprms of the J^"**^ 
land, but not eve^ bearing the signature of 
'hose d^d it purports to be, is incapable 
affecting any real property in Scotland; 
Ithough such a deed may be held effectual 
as a will) it is only in the case of move* 
h by legal fiction, are held to follow the 
de testator, that a :9^ill, good according t^ 
his domicile at the time of his death, wiU 
loyeables, wherever situated. It is a misr 
that the previous trust-deed had in itself 
altering the heritable character of the sub- 
ined in it. For it is quite fixed that ^ 
ixmveying an estate for particular purr 
without creating any beneficial right m 
{, does not div^t the granter, even though 
3 purposes should be a total sale. Where, 
»rson conveys heritable subjects in trust, 
aid that he has merely a personal right t^ 
;he trustees to denude ; and, in questions 
e creditors of the truster, this view has 
id. But the right is certainly not move- 
pannot be carried by a deed inci^pable 
heritage; Davidson v. Kyde, 20th Dec. 
r- 5597) ; Stevart v. Graeme, 7th March 
w. l^,4i>7) ; Ourie v. Coutts, 30th Nov. 
r. 4624). Such a deed would not have 
character of Lady Essex's right from 
^ moveable, or hav<^ affefcte^ the rights of 
^ven if it had been delivered in her life* 
A. CampbeU v. Speirs/ 14th Dec, 1790, 
S) ; Campbell of Ederline, 14th Jan. 1801, 




586 



DEqiSiPJlSOF THE, 



Ker, &C. V. 

Vaughan. 

Forgign. 

Teaioment 

Trust 




94 Feb. 1029. (ji^r.Jijfp,J:;A^^ MIRS 

coul4 affec^ suph a^lgbl tA4^^^ 

- law of Sqpaa»^., ^jiiias the dfi^^€ljp%\ 
entirely ipeflfectual fi» to ]ati4s, tlierjEf jy^^^ 
tinist for purposes undeclared, .which ow 
circiyuQt^pcjes of this cane, have anyr opemt 
the heirs-at4£^w. It leaves ^e right of ^o 
full force, capable of being rendered; effect 
feftmeut; and, in order to extixiguishth 
is necessary that there should be a d^,. 
the law of Scotland of affecting heritage,^jq^ 
poses which are destructive of the hejrV.rii 
this which divests the heir; and, coi^seq 
though dispositive words may notbejo^ 
words in the trust-deed being sufficient .to 
heritage) it must, as a deed affecting hejrj^ 
cuted and itttesjted according to the fpnoySij 
of Scotland. It must be regarded in ihe ji 
as a m^ginal note or subsidiary deed, s^ 
the conveyance, and not tested according to 
Scotland, and which, therefore, camaot b^ 
with.thei principal settlement, so as tofo^n 
tual conveyance of heritage. , , 

Pleaded for the defenders — ^ 

The trust-deed is complete to the-^BBac^r 
the estates thereby conveyed in the tracts 
enabling them to transfer the heritable r.pi 
Gotland ; the only question ifi^wJb^hfr fit) 
has su^fbiently expressed, jn the wb^ft%t9^ 
the purposes of the truiBt, Off h0r inj^Hiti^p 
parties to be benefited, hji it?^^ Tkf^rjptim 
which such questions have befii4jBKidedi9^ t 
there is a subsisting deed by which the e 
conveyed generally to trustees^ but the purp 



COURT OF session; 



587 



f«p««j^ therein/ any stA^ 

ieflcriittlbri^ by \Miich thifei6^ i?urpbye^ ntixZ^^T^ 

»*tfet^a«ea, the qUe^oit & to the effi:.^*'*^'- 



/IrttWiqireht will abes lidt inrolve any 
ithig the want of the Sdlemiiittes ne- 
<hfe law of Scotland in deedsr convey-. 
I The case is quite different from 
arty execating a deed, reservihg a poti^er 
fy his testament of will, or by any othet 
emted according to the forms of the law 
tcf convey his heritable property ; for, by 
I >»Ui heritable property in Scotland be 
•O&reyed. Bnt here the property has 
obnineyed by thfe tmst-cleed ; and the only 
bi^fiiubsequent deed is to ascertain how ttie 
the' property arie to be disposed of. It 
ttk'^ibf the feudal title— it is not a con- 
i^ftage, but ' merely an expression of the 
ibhes; and it is not essential, theriefore, 
lil'be executed with any other solemnities 
JeeSsary to prove its authenticity in the 
it is made out. 

tted that the appropriate dispositive words 
the law <rf Scotland,' for the conveyance 
property, were not necessary to be used 
d^ Instructions ; in other words, that such 
not fte conformable to the requisites of the 
lttidtn**tibstance^-f. e. in technical cxpres- 
^•flatilises ; but that it was necessary that 
eOftforMable t6 this- law in matters of mere 
tih^' mo^e of authentication and the for- 
M^tingt* Slit thifii is ehtirely a mistake. ^ ^ 
temnitles are only inquired to ceHain deeds 
of their substance and importance; and H 
Qq 



' TfUit. 



9M 



DBGfiSIOXS OF THE 



M Feb. rati* wouU be;Alnuod to peqiure tliein, as to autlie 
KeTftCr ^.cwes'iit whirh^thie tequisites of the law 



Vaugfaftm 
Foreiffm . 



to tb« ttfljHltiid^iwt of the deed, the legal cl 
not.koM* With regftrd to the validity of d 
CUitod incaiomign country, the distinctioo 
be .that, vluere it is interKkd to convey heril 
.perty situated in Scotland, the deed must be 
According to the fonnalities of the law of J 
but in other c$Be9i» if the deed is valid by t 
the eeuntry where it is executed, it will be f 
•and giv^i eiTect to in Scotland* If it doee 
yey heritable property in Scotland, or if a de 
eharacter necessary for that purpose is not 
4lieM seems to be no ground for insisting oi 
qualities of the law of Scotland m to autbei 
for this would lead to the requiriug of sud 
.ties in regard to all deeds executed abroad \ 
for any purpose whatever in Scotland}^— a res 
.would entirely exclude the rule which had 
prevailed. The defender's plea, therefore, is 
will or writing of 20th August 1819, beinj 
lUplodf valid as an instruction by Lady 1 
to th^ trustees to whom her e^^tate had been 
by the previous trust-deed, it must lye eflecti 
aaine extent in Scotland ; Mrjfk. iii, 2> 40; 
bam V. Lady Semple, 5th July 170fi, Fol. Di 
{Mw. 44^S() ; Ranking of the York Buildi 
ditors^ Slst Jan. 1783, (^ J/or. 447£) ; ( 
Boyd, 10th Dec. 1790 T^/^^. 4476) ; Simpso 
day^ liOth Dec. » 17^1 ; Elchies, voce Testar 
Broum's Sfippl. v. 6, p. 79* ; Dundas r. Dun 
F^b. 178$ (Mar. 15^585) ; Willock t\ Auc 
/l4th Decu 1709 {Mar. 5539) ; Stewart r, 
19th May 1791; i?^* CVw*?*, voce Foreij 
.Fordyce r. Coekbum, 5th July 1827, S. 
Brack v. Hogg, S3d Nov. 1827, 



eOURT OF SBSBIOSr. 



389 



sr iSm tesktee' of the tru8t^ubjcictB» ixt ForHgn, 
-tnnt^ced, which is cofffesstdlf valid, r!^!!?^ 
^Tostn^ but to Lad^ EBsex'a nest of -khi| 
iifflahrdf Enghnd. 



rectees came to be advised, the pursuera 
1 another actioa for reducing the deed of 
U9 capite lecti; it being admitted by the 
t it had been executed on death-bed. 
gmjf aaid^-^He was * surprised that the 
i:th»:head of death«bed had not beeor 
\m With r^^ard te the pteseitt ^ues-: 
trPtd;^ that it did not appear to be oC 
mace whether the tnist^^Ieed was eom^^ 
its.pasrta or not-^tbat is, whether^ tber^ 
d: convefaoce of particular lands» with 
nfieftment^ or merely a general trust^is^ 
eritttge belonging to the truster. In re-^ 
^veaentquestion* there was no great dif- 
aenitbe two ; and it appeared to his Lord-- 
rihe trust^eed, the lands were Conveyed 
hr. the purposes of selling and paying 
IfiUng the other purposes of the trust, 
nta of the clause founds upon (and re« 
namilive) were very peculiar ; and his 
Mferedit as a faculty reserved to the 
eedt her trustees^ by any subsequent writ- 
bves^flie liesidue of the estate to such 
khe3 shflnlld name in that writing i and, 
6 aaehr^Xniiingv there was a devolution 
Ale HdMruUt go> to ^e neit of kin, who, 
qiAttl deedi Hva^^kieffbfOuat, would be en^ 
Q q ft 



590 



DECISIONS OF THE 



Vaughan. 

Foreign 

TeatakMnL 

TrwtL 



24Teb. I82i^ titled to tHe succession in the same way as \\ 
Ker, &c t*. nomination had been made. The question, tl 
whether the subsequent deed or codicil was 
tual. substitution, in virtue of the reserved p 
favour of the persons named. Upon this ] 
Lordship thought the cases referred to by tl 
ders established the doctrine^ that a deed of th 
did riot require to be executed according to tl 
nities which were essential to the validity oi 
ginal deed by which the lands were conveyed 
there was a formal trust-conveyance of prope 
cond deed, declaratory of the purposes of the t 
contained clear directions, would be sufficient, 
not executed according to the forms of th 
Scotland. If it was a valid and effectual dei 
ding to th« lex loci where it was executed, 
according to the decisions whicli had been pre 
receive the same effect in this comitry- His 
could not consider this as an open question 
been decided by a series rernmjudicafarum, 
ticularly by the case of Willocks v. Ochterio 
Lord Craigie was of a di fferent opi niou, H 
that, in a question of such importance, it woul 
per to take the opinions of the whole Judge 
the Court were now to decide on the effect i 
dicil or deed of instnictions, he would say — h 
he did, that the interests of the nearest in 1 
the trust-deed were done away— that the int 
of the Lord Ordinary was well founded, 
trust-deed conveying lands in Scotland witl 
of sale, but establishing no immediate or 
interest in any individual, every written docn 
though not actionable per se, were to be 1 
cient, when coupled with the trust^eed, to 
the transmission or burdening of the prop 
whole constitution of our land rights, as ] 



GOURT OF sbis&ion: 



591 



Bcted by the records, would be doiie awiay. ^.^^^ ^ ^ 
had been referred to which authorised such a j^ g,^ ^^^ ^. 
His Lordship agreed in this respect with^*"^^ 
mlee, in the late case of Brack r. Hogg, thatFore;^. 
>y a f nist-cleed, a beneficial right had been yJJJJ^^^' 
. an individual, and where that individual^ 
g heir-at-law, takes benefit under the trust- 
re might be a question, whether he wap not 

take it under all the burdens there specified ; 
e he would be of opinion— and he believed 
Ben often ruled in England — ^that a person 
legacy or benefit under a will, duly authentic 

1 fai' as was necessary to carry moveable pro- 
igbt refuse effect to the same will, so far as it 
burdens upon him, if the will is not authen- 
\o as to be effectual for a devise of lands or real 
, But where no substantial interest is so 
f it were here admitted that the declarations of 
t be subject to the Scots law of death-bed, 
3t al^u be subject to the other limitations im«^ 
r the law of Scotland, and particularly to 
[lich regulate the fwms and authentication 
, with regard to the transmission of, or 

of public burdens upon lands. The d^ci^ 

the case of Willocks r. Ochterlony was 

in specialties, as was fully explained in 

of Crawford v. Coutts. In respect of onei 

the funds, which were personal estate, and; 

ntly, affected by the will, the judgment of 

Ft of Session was reversed. Upon another 

in, where the House of Lords aflSrmed the 

t of the Court of Session, the determination 

a principle long ago exploded, viz. that where 

eed created an immediajte though revocable 

:he parties ftivoured, that of the truster was 

1 into a UK re Jw crediti, and so devisable by> 



590 



DECISIONS OF THE 



24Teb. ltf2s^ titled to the succession in the same way as if 
KeT&ciT nomination had been made. The question, th 
Vaughan. whether the subseqiient deed or codicil was i 
Fareiffn tualsubstitutiou, lu virtiie of the resenred pc 
Trt^^It^ favour of the persons named. Upon this p 
Lordship thought the cases referred to by tli 
ders established the doctrine, that a deed of thi 
did not require to be executed according to th 
nities which were essential to the validity of 
ginal deed by which the lands were conv^eyed. 
there was a formal trust-conveyance of proper 
cond deed, declaratory of the purposes of the ti 
contained clear directions, would be sufficient, i 
not executed according to the forms of the 
Scotland. If it was a valid and effectual dee 
ding to the kx loci where it w^as executed, 
according to the decisions which had been pro] 
receive the same effect in this country. His 1 
could not consider this as an open question, 
been decided by a series rerum judlcatarum, 
ticularly by the case of Willocks v. Ochterlon 
iorrfCrrt/^*^ was of a different opinion. He 
that, in a question of such importance, it woiiL 
per to take the opinions of the whole Judgea 
the Court wefe now to decide on the effect o 
dicil or deed of instructions, he would say— h< 
he did, that the interests of the nearest in k 
the trust-deed were done away^that the iot< 
of the Lord Ordinary was well founded, 
trust-deed conveying lands in Scotland with 
of sale, but establishing no immediate or \ 
interest in any individual, every written doctii 
though not actionable per se, were to be h 
cient, when coupled with the trust-deed, to 
the transmission or burdening of the propt 
whole constitution of our laud rights, as ji 



COURT OF session: 



591 



Tru9t. 



tected by the records, would be doiie awiay. ^ ^^^ ^•^• 

I had been referred to which aujthorised such a i^^r, &c. v. ' 
5. His Lordship agreed in this respect with v*p g*»«"' 
lenlee, in the late case of Brack r. Hogg, thatFm;^. 

by a trust-deed, a beneficial right had been r*'*"*"*^- 

II an individual, and where that individual^ 
tig heir-aHa^v^, takes benefit uiider the trust- 
ere might be a question, whether he wa^ not 
to take it uuder all the burdens there specified ; 
re he would be of opinion*— and he believed 
been often ruled in England — that a person 
I legacy or benefit under a will, duly authentic 

fai" as was necessary to carry moveable pro- 
light refuse eflFect to the same will, so far as it 

burdens upon him, if the will is not authen« 
so as to be eflfectual for a devise of lands or real 
Y^ But where no substantial interest is so 
if it were here admitted that the declarations of 
St be subject to the Scots law of death-bed; 
ist also be subject to the other limitations im^ 
\y the law of Scotland, and particularly to 
;rhich regulate the forms and authentication 
ISj with regard to the transmission of, or 
g of public burdens upon lands. The d^ci^ 

the case of Willocks r. Ochterlony was 

1 in specialties, as was fully explained in 
e of Crawford v. Coutts. In respect of one 

the funds, which were pei*sonal estate, and; 
ently, affected by the will, the judgment of 
irt of Session was reversed. Upon anpther 
aiu, where the House of Lords aflSrmed the 
nt of the Court of Session, the determination 
n a principle long ago exploded, viz, that where 
deed created an immediate though revocable 

the parties favoured, that of the truster was 
fd into a mere Jw crediti, and so devisable by 



i9S 



mxasjGis^ or TSB 



Kep, Aa m 

Foreipm> 
TeUmmitmU 
TrutL .^ 



•a ihimite o^snte; In thir ca^of Rom t\i{ 
4iid lit aararid later ca8e8» the: tojOamrf 
«teaarly cstaUishfed. But with regard to 
of ttb^ foads, rwiiidi related to a }av^ ( 
by^the tnifitees outof an faeritobte debt, 
floately found, in cross appeal* tbat tlievufi 
trtmsmittedbywilL In thecaseoCCrawfS 
i^iiere H bad been asserted that large sti 
lent bjr peotsmtis in England upon Scat^ 
whiehit was supposed that the lands ;mi 
drawn from the law of death-bed^ jt wi 
the fullest censideEatioD, that the form 
was of no importance, the estates ;stiU i 
the truster^ unless a beneficial intesast mm 
in aoatie other person. In the cas^ of 6un 
elajr in 1751, it had not been atbeudod 
^decree was called in question in the year ^ 
ground that the writing there referred < 
y^m not holograph of the testator, as had b 
and diere was a full argument at tbej 
merits of the decision in 17>£^1, although { 
did not proceed upon the merits, but.iij 
tH * competent and omitted.' But the o 
vered by the Judges with regard to the efi 
HOitiug, as inoperative in the traaamisi^^ 
property, were expressed in the clearestii 
fl^rms. That this decision was not to iie 
Reports was partly owiug to a eompron 
the parties, and partly beeanae^; oo; aebou 
JwMeatm, the Cdurt cpuld not give eX&stdi 
iaidii*. BUtilie result of the discttsato&jwai 
iltk ib^ piiiadiilgs ill the qasoiofi WalscHiLi\ 
ifa Wfal^h/ as well as tbathdf €r^wfcid,a 
judgment tf tiie Court of SiB^sion wasimy 
IJouse of Lords. 



cmmTiOFrBBssKOn: 



sn- 



teni <Hii8idfer«d . by thet Jiiigdsi who f i had K^I^ATi 
ras oDBof the mestdni(MMrtaM:vQbiclijc6aU^AugiMii^ 
before iheC^iSTty And.itwppMa^rtoihm^ 
& ijc attended with greaiter diffioftltyiifrdai JjJ^*^ 
leUioh fae entertaiaed of the» jreundan^s^^/ of 
is wbacb had been: nf^rred totb^ tb8.4c- 
^tlMquestioa to be- decided wtOd^yduAer 
h as the deed of i^n^tituctdonlB ifi jqueatjon* 
'imeSkebdal^ aoeording to ih^ layr :c( Skot^ 
eonreyance of heritage^ was . to faam> lUa: 
OBequence of the subsistence of r proidotis^ 
b)r. which the lands were conveyed -to tnis- 
rdsthip waS: not prepared^ notw&thstancUog 
m seferred to» to give an alBSimativei aasurer 
stion. l£f for instance, a party havitug an 
isotlaiid^ but resident in Englaad^ should 
a ^minute of «ale, exeputed ii» JBng}^pd» 
It be effiectaal according to the law of that 
it whidi, by the law of Scotland^ wouM he 
null and void, to sell the estate \q j» third 
liMri^sAAp was not prep^ed to say tba^ auch 
lould aflfeet the property. It wa? true itbat 
I stated, upon the authority of MrJ^Uiskfue, 
lid authorise an action at the instapce of 
ed pufdiasers ; but his Lordship thwght 
tas« very dangerous doctrine, aMd^ om to 
:ould not give his assent. But Jie dJ4 Pl>t 
ras>at vail Beoessary* in the px^s^nt^^iiisfy to 
^"abatraM question. With resgw^ -to^^^ 
k>w tfar tte dised of iQstnic;Upfi§^vva<HDit- 
re bson^ executed ton d«ath^lM>IcoMi4,'be 
Iftumt^^itfate heir in relation tO: thj»| h^ijitage 
id,>'lm >vL6Alfilbip cobswvBcl^: that« 4q< i#ti the 
trtPd^tn, ^iur-^hibh separsite 'waitings, ajl- 




«ft4 



msfamom^omiimE 







Foreign, it was a different questkinl how iir l^iufbiw^ 

5!^**^;; ijrec^ive^tfftet *o the fw^udice of the - l*tie^ 

4^)^ weti$ r^oved cr admitted to havebemi 

<m:4eiith-^hed- But there was another view 

ittappottfed to fat^JLordship that it wap w 

to prpoaiiBce any decision upon either of 

poitant questimis. There was here a regv 

deed executed by Lady Essex Ker ip pri^pi 

ealrlanguage^ and with all the fbrm^Utief 

by the law of Scotland, conveying hear pi 

trustees ; and, by thi^ deed, she directed 

tees to make over the e9tates» or their ; val 

came to the same thing, to certain p^rsops^ 

terwards named by her by a separate wtitii 

defiftuH of her naming such persons, she pre 

they are to be made oyer to her nearest of J 

law of BngUmd, or statute of distributions, us 

vour there was thus aa effectual nomination. 

pf her making a subsequent one. 8hfe Chei 

a second deed, naming the pcnons to whom 

were to be made over. Now, this second deed 

a good deed or a bad deed. If it wete* a { 

then the estates would go to the persons nai 

in, wh<^ w^re not the pursuers. If it were a 

theit the estates would go to the nearest of 

i^ir of Sng^and, or statute of distributions ; 1 

piursueirs, the heirs-at-law in Scotland, a» i 

.Qot'takeibe succession under either of Itie < 

not interest to pursue the present action. It ^ 

6w«r to>toy that the deed of instnftctions^ 4U1 

validr^as an oMigatiou^ would still be effeetfU^ 

the jdgbis of the next of kin. It could oinly c 



€ovfTiftfja»'%^smaj. 



«95 



mng^ tiilld dee*; <brvtf i«)'#«r*«ot^inUld«* ^w,- 1««- 

» WadC^bdneces&itfftfT cteddiri^ fee gcuwil Vai4?£^ 
pi4ikb'lMid;b«€fn-nu$€id;'^^ :> )"!vr^;i>N .; ^..-.v- t. 2^,,„,|^ ■ 
»dI¥e8idMt ^niJbteky cbkjctfri^^iritbi.ord yjy ^ 
«liibid]i^ timt, ab the pilirstteyii couM^^m^ 
isidii niOeif either of ttte deeds ekcUnMdby 
iM Ker , they had no interest t6 Ingist Jn the. 
cftion« Bat his Lordship also agreed l^ith 
^y in opinion that, according tto tb^ided- 
ch had been pronoimeedi where tket^ in» a 
Trying the property of the granter to trus* 
as not necessary that a snbsequetit deed, de- 
of the purposes of the trust, or in eseCnlion 
ed' powers, should he executed according to 
I of the kiw of (Scotland. Mudi mor^ ' alsq 
'tfaid^upon the general question as to the ef- 
I -aUigattOD, valid according to the law^of the 
nrhete it was executed, to oblige the grenter 
ITS to convey heritage in Scotland, thiali might 
ght ooeur. According to the docti^hie^ ; )ai4 
JS^sLB. iii. tit. 2, j 40, a deed <yf diis nar 
not in any d^ree founded upon as aconvey?- 
Ityperty. For his Lordship entirely concurred 
other Judges in holding that a conveynnce 
D^ i« Scotland, to be effectual, must be fhvmal 
peets, and executed with all the formalities of 
>f Scotland. But then, if the lieir takes the 
n, he renders himself liable to fdl the X)bUgar 
he deceased'^ and this being a legalobttg»tion, 
is bound td implement it. Suppese^ a ^person 
ftibofid in Bng^nd for pisyiiieiTt of af sum of 
Is repi^esentatives are bound to im{riement that 
Phe executors, in the first place, would be Ma- 
in the next place, the heir ; for, as Mr Erskine 
ere one becomes bound by a lawful obligation 
^t cease tp be bound by changing places ; and 



99^^ 



i31BdiSi(Wig OF. the: 



i4 t«b. ia2i. tiie dMigaf ion, fjteln^ ai legdi oae, fe bincliiig 
KeT&cir 3^epi^8^tatives af the granter; fi^ven :a ] 



Vaugiian. 
TrusL 



sale, inTadid and icregiflfti* as it might bef ae 
the law of Scotland, might be eifecttial again 
takhig \ip Ahe estate ; for, byso d^ing, be aul 
self to the obKgations of the deceased. Bot^ 
cessaiy to discuss this quetstion further, as il 
case does not turn upon it Here tfaif heril 
gulai-ly conveyed by the trustdeed, which i 
and effectual deed by the law of'SrotlaBrd 
heritage ; and, supposing the deed of itssftrt 
to be a valid deed, the nominees under the 4 
the next of kin of the granter, would cg 
that the pursuers cannot take the estates un 
of tile deeds in question, and have no Intei 
sist in the action. 

A majority of the Court were thus for al 
interlocutor 6f the Lord Ordinary ; but qb tl 
difference in the grounds of their Loitlshtps 
a difficulty arose as to the terafis in whldh 
ment of the Court should be made out. 
point diere was a great deal of discusdon i 
Ultimately, however, and of consent of the 
the Court ^perseded the determination of 
until the action of reduction ex cofite leeti 
brought befwe them. 

In this new action, the Lcnrd Ordinar 
-eases; and, at the next advising, JLord^C 
{m reference to the first action of rechic 
according to the decisions Whieh had i 
noUnced, and particularly in the case of 
lony, it appeared now to his Lordship to ,b€ 
^>olcrt that a testament or deed of imMruaio 
plement of a prior trust-deed, although n 
according to the law of Scotland, if execute 
sixty days previous to the granter's death. 



txmir jo^ ssaaiQif . 



«BT- 



ectMUdedaraUoi^ of thee^ds ai^d puiposes ^ ^^^^ ^y 
rjUfit ; aiid, therefore, if the deed in question kct, $c. tn 
I eiieo^ted 4» Ikjge^ jpoustie^ hisXoirdshlp now ^* "g*^°' 
j|)Wt it must, according to these decisionfiy/'ortfj^ 
en cMfeidereA as an effectual deed. JBut (he r^^T^* 

remained open, in the preiient action, whe- 
disinheriting of an heir was such an end and 
which could be declared in a deed executed 
L^bed. 

this point there was a great deal of discus- 
he Wiar; and Lord Gillies spoke at coosidei^: 
Iftfa npoji the question ; but his Lordship c|b- 
that he did not intend that what had faU^n 
a sholiM be considered as his deliberate Ofui- 
[id that Jbe had nnerely thrown out these views, 
;ht be useful to tiie parties in t^ fiusther dj[s- 
o£ -the cause. For this reason,, and M all 
rdships were of opinion that, iqx>n this poipt, 

was not yet prepared for decision, it has 

11^ t pid^ not to report mote of what piMised, 

Arising* With the view of taking the opi- 

the other Judges upon this point, the Cowt 

Giddltional cases^ 




Vi 



\ first action of reduction, however, the fo)^w«*: 
rlocuter was pronounced >~' The Lorda» &e% 
lie interlocutor of the Lord Ordinary reclaim^ 
iMt; sustain the defences; assoilsiie theida^f 
frotai the conclusions of the action, and de^) 
ritbout prejudice to the pjarsuers. insisting ii»! 
ioU0MeapitgieetL' r 

mfrvi Eldin. Act Dean of Fad (Moncreiff) 

"^ym&icn:^ ' AUx, GoJdie, W. S. Agent. Ah/ 

Qia^fSopeyiGio. Jos. Belli For^i . itmmai: 




598 



DECISIONS^OF THE 



SECOND DIVISION. 



No. XC, 



25 Februarij 



MACDOUGALL 

against 
CAMPBELL, 

PaoC££;8. — After an action ^ damages for 

tion has been remitted to the Jury Con 

competent to conjoin with it a mipplementui 

founding on other danders previous as wel 

' sequent to that which forms the subject qf 
ginal action, although res naviter veiiteti 
the second action. containing no ^ 



' inconsistent with the first. 

After the interlocutor of the Court remittin 
tion of damages between these parties to the Jm 
{eee Fae. Coll. 7th March 1828) the pursuer 
supplementary action, stating the cause of the i 
purpose imputed to the defender in uttering th 
slander set forth in the former action^ and s] 
various other previous and subsequent occa 
which ^ef^matory expressions of the same imp 
used by him. In the original summons it was e 
stated that the defender was an elder oft 
session, in whose presence he charged the 
with theft ; whereas, in setting forth the same 
in the supplementary summons, the char 
which the defender is there allied to have sj 
is described as follows : — * The pursuer, iu t 
* of his intended marriage, having ocTasiou t 
^ to the minister and kirk-aession of Kilbran 



dOURT OF^ SESSIO?^. 



50& 



parish, for a certificate of character, and of** ^^^ *®*^ 
iing entitled to church privileges, the said Macdougafl «l 
ttder Campbell, who had been at times in the^'"°P^ 
^e of sitting as ah elder in that session, 
h not regularly ordained to that office, attend-^ 
I meeting of the session at which the pursuer's 
ation was to be considered, and then and 

using his supposed privilege as a member of 
burch court as a doak ' under which to vent 
ice against the pursuer, alleged, &d. 
lefender objected to the competency of the sup- 
ary action, 1st, As liot libelling facts arid 
I merely supplementary ; Qdly, As alleging 

of a date previous to that which forthed the 
of the former action ; and, 3e//y, As being in- 
nt With the original action, which admitted 
I defender was an elder, and officiating as an 
t the time he used the expressions complaitied 
e the kirk-session, while the supplementary 
is avers that, though in the practice of attend- 
etings of the kirk-session as an elder, he was 
ularly invested with that office. 




cause having been verbally reported by the 
Ordinary, the Court was of opinion that the 
St only was Well founded. The objectionable 
ions in the supplementary summons were 
igly struck out ; and the action, as thus 
d, was sustained by their Lordships, and 
i to the Lord Ordinary to be conjoined with 
;inal action. is 

ingUtU, Ordinary. Fbr the Puiwer, ./<^^, JTO. 

William Merdpty W. S. Agent Fot the de- 

ier, Skene^ Wlu^ham . Thomas Sume. W. S. Agent. 
Clerk. 

S. 




JOQ 



DECISIONS OF THE 



No. XCI. 



SECOND DiriSJON. 



25 Februar% 



WILLIAM ROBINSON and Othe 
. . agaiiist 
ROBERT FARQUHARSON. 



VnocYSH^^'^Ac^ifm diwiused^ because the 
. WMiheU inctmsisteui with the €ondesce7idi 
Jbrmerkmmg setforth^ as the ground of d 
which was for payment of a hill against the 
representative^ thai the drawer indorsed ike 
pursuers^ whereas^ in the condescendence, 
d^endefsamerment was not denied that th 
indorsed bjf the drawer to the hank, hy 
Vfos discounted, it was merely alleged that 
mere retired the bill at the bank with t 
funds, and that the drawer's indorsation u 
wards obliterated by mistake. m ^21 

A. SUMMONS at the instance of John Ewing 
liaxo Robinson stated* es the ground of actio 

* the Rev. Robert Farquharson, minister of t 

* of Coldston, now deceased, by his bill, dated 

* day of October 1825, drawn by him upon 

* oepted by, Geperal Alexander Hay of Rai 

* deried the said acceptor, six months after 

* pay to him, the drawer, or order^ L.300 

* i^l)]fch faiU was indorsed by the said Rev 

* Farquharson, drawer, to tlie said Ewing an 
' son, and was» at their instance, duly protester 

* the said acceptor for not-payment, and agi 



COURT OP SBSSIONf 



601 



iRrCM^ 



and intforaer for recourse, &c. ; and the dis- »^b|U»- 

whereof was duly intimated to Robert Far» itobiuon^&c 

B, Esq. as heu: of the said deceased Rev. "^ F«r,»*w- 

FajrqfttharMn/ The numuioQS^ therefore^ 

for payment of this hill against the de£^n^ 

srat Hay and Robert Farquharson^i * 

Qdescendence^ the pursuers stated, that the 

lecepted by General Hay, and, being blmak 

t>y the Rev, Robert Farquharson, was di»- 

rith a branch df the CjpiHimercial Banking 

: That, when due, it was retired at the bank 

usuers with their own funds : That, when 

as ddivered up by the bank, Farquharson's 

n remained blank, and was p^fectly entire^ 

aftenmrds the Indorsation was obliterated 

tary who signed the protest, in ccmsequenc^ 

itatke of the pursuers' clerk in extending thf 

^t in- the name of the drawer against theao- 

place of extending it in their name against 

Ksceptor and indorser : That, as soon as this 

ras discovered, the pursuers caused a protest 

ended of new, in their own name» against 

lay as acceptor, and Mr Farquharson as in* 

[h the answers, it was averred that the bill 

rsed by the drawer to the bank, and the 

received by the acceptor ; and this statement 

ienied by the pursuers. 



fender, Farquharson, pleaded — ^That, as the 
rests upon the allegation that * the bill was in- 
fy the said Rev. Robert Farquharson, drawer, 
aidBwing and Robinson,* — whereas there is 
ntion by Mr Farquharson, the same being 
d and dischai^ed — the pursuers cannot make 
tual claim under the summons. 



» Feb. ita». 




D^l^lj^i ff fvpib J 



The Lord Ordinary pronounced this 
Bobinson, &c tor ! — ' Finds that the narrative of the 8uk 

j^Farquhwr. • ^^j^^ the puffilft^ A^li rt^iS^^ 

to the bill sued on, as indorsers of the dn 
bei^lS'fti^liJ^fuSpt^ isL contradicted by the 
contained in the revised condescendence, ^ 
not^ therefore^ sttSpprt the said 8imimR93 
the action ; finds the pursuers liable in exp 
reserving to the pursuers to briitg an'^acti 
covery of the contents of the bill Bbelled, if 
be so ftdtiaed ; and decerns/ 

A reclaiming note against this iHtaHtoc 
unanimously refused. 

Observed by Lord Grlentee.^A odndeBOtnd 
state the same grounds of action as are sefrft 
summons. Here the summolis imports tha 
had beeii handed over by the draper, iHtk 
his blank indorsation, to the pursuers. Biibi 
Jacti in the condescendence is of a totally 
nature* 

The 0/^^ t7ȣ^^ Concurred. 

Lord Medw^i Ordinary. For the Fnraueta^ 4^ 
Rcberi Burnetii W. S. Agent. For the 

Jamesoriy Shaw, Alex, KaimCy Ageni 






OEf&tifittff 1^ 


SM 


ElM 


i:- 






to$- 


isiiJ ?>'- '^ ;■»-: ^'1 


V. ' 


;:*.;i 


' iL) 


Lx^. 


•vl 


.■Jl'.'i' ■ 


MU^ •> *'; ' . r .- • V-... 


•,»T ., 


• il ^ 


.'M 


r'Ui' 


."■i 


■'— ; T-.' 



^amcoi^B joirisfosf^. 



■>.$ 



M iPMHMf^ ISflOL 



WmUBLVS TRU8TSBS 
pgakuft 



\j>vocATiON.-^-4l» Geo. hi. c. 118;**^^ 
m is competent where an interlocutor of an 
^4g^ ^iiepoees oftkewhobqu^etionasbe* 
pursuer and one of thedsfenderSy^^ 
)emat a JkHd judgment in rifference to^ 



IM 



# of the late Mr Gemmell of CoinrteBsk 
f ite depcndaace of a process of fiequeMnA^ ' 
^ iitfttanoe against Butter, a teaast undelr* 
eA by the deceased, presented a petitiea* 
r of Perthshire against Bntter and Miller^ 
that, by the terms of his lease, the former' 
from selling or carrying off stravr, tin-' 
n, and turnip, from the farm ; and that' 
by the lease, as well as by the common * 
ra of good husbandry, to consume upon' 
ring the currency of the leade, the whole 
and raised on the farm ; that Miller, a 
Butter, had executed a poinding of his . 
as, and had advertised a sale thereof, to 
1 an early day ; and praying the sheriff 
srms of the ten^nt'9 obligation ; ^ and, in 
ime, to prohibit and discharge the saidi 
ler, and all others, from roUping, selling, 
Dg off, frojn thtf said poas^sdoni,. straiTi 
Rr 



JL 



6d«. 



DECISIONS OF THE 



Tru9tees v. 
Miller. 

Advoeaiion, 



*wiJ?^** Tinthrashed corns, turnip, and fodder ra 
GemmeU's * ^^^9 thereafter, to declare the interdii 
And, farther, to find that, before he i 
sell off any part of the poinded effects 
to fiiid security for payment of the 

li^^ ^^^' **' '^°*^ ^^® ^^ *^^ petitioners, and to prol 
' till that be done.' • 

Miller gave in answers, stating that 
lodged a bond of caution for payment ol 
which the corns poinded were hypothec 
entitled to an assjgnation of the petitioi 
hypothec; and, with regard to the allegi 
of the tenant to consume the straw and i 
farm, it could .not affect the respondent's 
The sheriff (XOtb September) appoiute 
dera to produce the process of sequestrati 
' the meantime, inhibits and discharges 
'removing any of the fodder produced c 
Thereafter/ the sheriff, * having advised 

* and heard the pursuers' procurator, and 

* Mr Miller^ by both of whom it was a 

* the defender^ Butter, had now remov 

* farm, and that his tack was at au enc 
*• interim interdict of the 10th Septenibi 

* remits this process to the process for s 
*.and mterdictat the pursuers' instance aj 
'Butter, and the ti*ustee for his creditors, 

GemmeU's trustees having thereupon at 
cause. Miller objected that the advocat 
competent, seeing that no final Judgmen 
pronounced by thesheriff; and the interloc 
he did pronounce were not of that descri^ 
eveq with leaw of the judge, could conipe 
been, advocated. 

. The Lard Ordinary reported the cause \ 
V nta»nM^ to tiie^ question whether the r 



C0UBT OE^SBSSION;' 



eoiP 



m interdict rendered advocaticHi competent/ bia^fi Fei). id^ 
ip baring previously issued the following note Joemmeirs 
luestion seems important to the public; ^-^^^^^^ 
though the reeall of interim interdicts by in- -L^ 
j udges is not very common; the refusal of them ^JJI^^^Jj^ 
mon, and may have mischievous effects if er-'^ ^^ '^'* •^ 

112. 

lis, and if there be no remedy for the error at 
none witiiout leave of the inferior judge, who 
rr ia refusing it. In particular, the refusal of 
n interdict may render all farther proceedings? 
tordict nugatory. And it is important to that 
» in this case to avoid the risk of proceeding, 
ritfaomt original competency ; vide 50 Geo. Ill, 
,»ect,8».' 



' AUoway was of opinion that* the judgment of 
riff was not an interlocutory but a final judg-- 
[t was a warrant for instant execution. In re* 
to the question, whether the poinding credit, 
lid be allowed to proceed with his diligence, 
rlocutor finally disposed of the cause ; see tha 
Huater, 10th March 1824, aUd Christie, Mi 
i25. 

' Olenlee was of the same opinion. With re- 
Butter, the sheriff's interlocutor, no doubt, 
t be a final judgment in the cause. But with 
bo Miller (as to whom only the Court has to 
I clearly a final judgment. All that was asked 
him was just an interdict against his selling 
rying off the straw, &c^ ; and' the^uiterlocuter 
ned of, in effect, refuses this application. Every 
utor is a final judgment which exhausts the. 
itter at issoeJbatweea the partus ^whd. are be- 
5 Court. 

I PiimiUy was inclined to consider this. in. 
utory judgment» which mi^t have been Bd« 
RrS 



m 



»E€ISIC^80P THB 



Trustees «• 
HiUer. 



25 pfeb. 1029. vocated ^s operating a change of possessi 

Gemimeirs ^ith leave of the inferior judge, which the 

did not ask or obtain. The statntie mak 

— tion, in cases of interdict, as to the neeess 

rSion. inff forlteve ta kdvocate. If, indeed, t] 

60 G#4 ///. f-here can be considered as a final judgme 

Ck)urt will get quit of this question of for 

T/ie Lord Justice-Clerk was of opinic 

PitmiUy, that, viewing the judgment cc 

as ah interlocutory judgment, it could be 

advocated only on the ground that it \i 

tt'tshange of possession, and,* consequen 

lea^ of the sheriff was necessary. But 

was strongly impressed with the views of 

lee and Alloway, that the question as to 

£e considered as finally disposed of by th^ 

might be entitled to say, thai he has i 

with any remainilig question as between t 

eii^ and Butter. .^ ••